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February 15, 1991


The opinion of the court was delivered by: SHADUR



 This action seeks severance benefits allegedly due by reason of the termination of 16 ex-employees of Amoco Corporation ("Amoco"). *fn1" Amoco's nonpayment of such benefits assertedly violates the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461. Amoco now moves for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, its motion is granted.


 All plaintiffs were employed by Amoco's wholly-owned subsidiary Amoco Oil Company *fn3" at its toll road facilities in Hinsdale and Des Plaines, Illinois (the "Facilities"). All were members of Local 705 of the Truck Drivers, Oil Drivers, Filling Station and Platform Workers' Union ("Local 705").

 Plaintiffs' claim rests on their purported right to participate in Amoco's Severance Allowance Policy (the "Policy," Complaint Ex. B). These are the relevant provisions of the Policy:


The purpose of this Policy is to provide severance allowances for employees whose services are permanently terminated for causes which are no fault of the employee involved. The Policy may be implemented for a particular employee-reduction situation for a limited period of time, and an employee affected by it will be informed as to its provisions.


* * * *


"Company" means Standard Oil Company and any of its subsidiary companies whose management elects to apply the Policy to a particular employee-reduction situation for a limited period of time.


* * * *


"Employee" means any person giving his full-time services to the Company who is designated as being covered by the Policy at the time it is made effective but shall not include temporary, part-time or casual employees, not any classification of employees designated by the management of a Company as not eligible to participate.

 By letter dated November 12, 1984 (Complaint Ex. A), Amoco informed plaintiffs and other employees at the Facilities that the locations would be converted from company to dealer operations effective December 1, 1984 and that the services of each employee would no longer be required after November 30, 1984. As a result, all employees covered by the collective bargaining agreement between Amoco and Local 705 were terminated. At least some of the plaintiffs were offered employment at a lower level of compensation by the new operator of the Facilities.

 Pursuant to "effects bargaining" between Amoco and Local 705, Amoco agreed to pay wages to each employee through December 31, 1984 and also to provide them with vacation pay for 1985 if they remained on the job through November 30, 1984. Neither the applicable collective bargaining agreement nor the effects bargaining included any undertaking by Amoco to cover the Local 705 employees under the Policy, nor did Amoco ever advise the employees that they were covered by the Policy. On the contrary, any employees who asked were explicitly told that they were not covered by the Policy.

 Plaintiffs initially sued Amoco in the Cook County Circuit Court of Illinois. Amoco timely removed the action to this Court on the ground that plaintiffs are asserting a claim for benefits under an "employee welfare benefit plan" as defined in ERISA (29 U.S.C. § 1002(1)). Although this opinion holds that plaintiffs lose on the merits, Amoco is right in its characterization of their claim -- so that this Court's subject matter jurisdiction is beyond dispute.

 Plaintiffs' Non-Coverage Under ERISA

 Neither ERISA nor any other legislation dictates that an employer must provide a benefit plan for its employees (as to ERISA, see Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1160 (3rd Cir. 1990)). As stated in Moore v. Reynolds Metals Co. Retirement Program for Salaried Employees, 740 F.2d 454, 456 (6th Cir. 1984) (emphasis in original):


We note initially that an employer has no affirmative duty to provide employees with a pension plan. H. Rep. No. 93-807, 93rd Cong., 2d Sess. (1974), reprinted in [1974] U.S. Code Cong. and Ad. News, 4670, 4677. In enacting ERISA, Congress continued its reliance on voluntary action by employers by granting substantial tax advantages for the creation of qualified retirement programs. Id. Neither Congress nor the courts are involved in either the decision to establish a plan or in the decision concerning which benefits a plan should provide. In particular, courts have no authority to decide which benefits employers must confer upon their employees; these are decisions which are more appropriately influenced by forces in the marketplace and, when appropriate, by federal legislation.

 Hence plaintiffs must look solely to Amoco's Policy to confer any rights that they can hope to invoke here. But the unambiguous terms of the Policy state that it is not brought into play in any employee-reduction situation unless and until Amoco affirmatively elects to do so. No one is an "employee" covered by the Policy unless and until Amoco makes such an election. Amoco did not do so here. That kind of employer decision (or nondecision) does not even reach ERISA's front door.

 Indeed, even if plaintiffs had been able to open that metaphorical door for Amoco's employees as a group (as they have not), Amoco would have had the unfettered right to close it before plaintiffs had been terminated. Young v. Standard Oil (Indiana), 849 F.2d 1039, 1045 (7th Cir. 1988) (citations omitted) has succinctly summarized that aspect of an employer's severance-benefit duties (or the absence of such duties) under ERISA:


Under ERISA, employee benefits are divided into two categories -- "welfare" benefits and "retirement or pension" benefits. 29 U.S.C. § 1002(1)-(2). Although ERISA imposes stringent accrual, vesting, and funding requirements on retirement benefit plans, such requirements are not imposed on welfare benefit plans. 29 U.S.C. §§ 1051, 1081. Severance benefit plans are welfare benefit plans. As such, severance benefits are unaccrued, unvested benefits. Moreover, severance benefit plans, though subject to certain disclosure (29 U.S.C. §§ 1021-1031) and fiduciary (29 U.S.C. §§ 1101-1114) requirements, are exempt from the more stringent ERISA requirements. 29 U.S.C. §§ 1051, 1081. An employer may therefore, unilaterally amend or eliminate a severance plan without violating ERISA. This is so because an employer is permitted to act in a dual capacity as both the manager of its business and a fiduciary with respect to unaccrued benefits. An employer is therefore, free to alter or eliminate severance benefits (which are usually solely funded by the employer) without consideration of the employees' interests. In short, an employer does not owe its employees a fiduciary duty when it amends or abolishes a severance benefit plan.

 Thus even if there had been a generalized Amoco severance policy potentially applicable to plaintiffs' termination, Amoco in its capacity as manager of its business would have had the unilateral right to eliminate it.

 But that hypothetical prospect need not be dealt with, for Amoco was not modifying or abolishing a preexisting severance benefit policy. It was rather choosing not to implement such a policy as to plaintiffs in the first instance. For the same reasons that ERISA's fiduciary standards do not attach to an employer's decision to amend or abolish a benefit plan once established, they surely do not apply to an employer's judgment that a benefit plan should not be established at all in a given situation. *fn4" Such a judgment is made outside of the boundaries of ERISA, whose requirements do not begin to apply until a plan is being administered ( Hozier, 908 F.2d at 1158). Yet another Amoco case -- Phillips v. Amoco Oil Co., 799 F.2d 1464, 1471 (11th Cir. 1986) (citations omitted) -- has put the same concept simply:


ERISA does not prohibit an employer from acting in accordance with its interests as employer when not administering the plan or investing its assets.

 Because Amoco was making the kind of business judgment as to which an employer is given free rein, ERISA and its accompanying fiduciary duties do not even come into this case. This Court has no warrant to second-guess Amoco's decision not to implement its Policy for plaintiffs' benefit.

 That whole concept, as basic as it is to the law of employee benefits, somehow eludes plaintiffs' counsel entirely. As a result, they devote all their attention to what are really nonissues.

 Thus they urge that this Court must decide whether to review Amoco's decision not to cover plaintiffs under the Policy under either a "de novo" standard or an "arbitrary and capricious" standard that is reserved to evaluate discretionary decisions of a plan administrator (see Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989)). But again these standards come into play only when a policy is being administered, when the administrator may be in a position to interpret the terms of the policy and to determine who receives benefits. Because the Policy does not apply here to begin with, there is no need to comb through its terms to ascertain whether they grant any discretionary authority to the administrator. *fn5"

 It is equally irrelevant that (as plaintiffs emphasize) other employees under arguably similar past circumstances were given severance benefits under the Policy. If Amoco had chosen to implement the Policy and then had arbitrarily denied benefits to plaintiffs in a manner inconsistent with its prior application of the Policy, plaintiffs might have had a claim (see Pilon v. Retirement Plan for Salaried Employees of Great Northern Nekoosa Corp., 861 F.2d 217, 219-20 (9th Cir. 1988)). *fn6" But because Amoco was under no duty to extend the Policy to plaintiffs at all, it is unnecessary to analyze the facts of those prior situations here.


 Because ERISA does not require Amoco to implement its Policy in any given situation, no genuine issue of material fact exists as to whether Amoco violated ERISA in denying severance benefits to plaintiffs. Amoco is entitled to a judgment as a matter of law. This action is dismissed with prejudice.

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