We review here another case involving alleged promises made and broken in the highly-charged environment of large-scale layoffs and shifts in the labor market.1 The thirty-two plaintiffs in this action are former employees at the Packard Electric plant, a subsidiary of General Motors Corporation ("GM"), in Clinton, Mississippi. When GM announced layoffs in 1983, it negotiated with the union a separation agreement, according to which employees could opt for a severance payment in lieu of preserving their seniority and rehire rights. At meetings to explain the plan, a GM representative allegedly told the employees that they could be rehired if new jobs were created, although they would have to apply like everyone else. Plaintiffs contended that when new positions opened in 1985, management informed them they were ineligible under the severance plan.

The plaintiffs sought redress in the district court, basing jurisdiction upon diversity, and positioning their claims upon theories of state law fraud and misrepresentation. GM moved for summary judgment on the ground that the district court lacked subject matter jurisdiction since the proper forum was the National Labor Relations Board ("NLRB" or "Board"). In the alternative, GM claimed that plaintiffs' state law claims were preempted by federal law. The district court denied the motion and certified the question for interlocutory appeal. We accepted the case for review and now affirm, holding that the NLRB has no jurisdiction and that state law governs the action.

I. Right To Be Considered for Rehire.

In 1982, demand for domestic automobiles began to slump, resulting in planned layoffs at the Packard Electric plant ("the plant"). A committee comprised of both union and management created the Voluntary Termination of Employment Plan (the "VTEP"), offering severance pay, either in lump-sum or two-year-installment payments, to those who agreed to resign. This much the parties agree upon; they differ with respect to GM's position concerning the future employment eligibility of those who opted for the VTEP.

GM's version of the facts contradicts that of the plaintiffs and their union in every important respect. GM contends that the parties raised the issue of "rehire rights" in bargaining over the VTEP and that GM officials specifically told union representatives that employees opting for VTEP would not be eligible for rehire. Plaintiffs and their union claim that the representatives asked about future eligibility and were told that would be "no problem." GM alleges that during collective bargaining over the plan's details, management negotiators told union negotiators that employees who accepted plan benefits would not be eligible for rehire. GM further contends that when its officials presented the plan to the employees, they told the employees that those accepting plan benefits would be ineligible for rehire. Lastly, GM reads the VTEP itself as "vague" and "ambiguous" on the issue of employee eligibility for rehire.

Plaintiffs would explain the differing factual accounts as a semantic miscue: GM's references were to "rehire rights," a term of art as between the parties that denotes those rights held by laid-off employees under the general collective bargaining agreement. Such rehire rights would include the rights of laid-off employees to be called back in a certain priority, to have their seniority and benefits reinstated, to work at a particular wage level, and so forth. In contrast, plaintiffs assert that the issue of "future employment eligibility" was independent of the discussion of rehire rights, concerned only the potential for those who opted for VTEP of ever being GM employees again, and was not the subject of collective bargaining.

Plaintiffs, who are thirty-two former GM employees who opted for VTEP, brought independent actions in federal district court, premising jurisdiction upon diversity and alleging (1) that GM, when presenting the VTEP to employees, offered false inducements to employees to opt for the VTEP, in the form of promises concerning future employment eligibility; (2) that GM knew these inducements and representations were false; (3) that plaintiffs relied upon these representations in accepting the plan; and (4) that plaintiffs were injured as a result of this reliance.

II. Subject Matter Jurisdiction: Is This a Case for the

NLRB?

Congress vested exclusive jurisdiction in the NLRB over conduct that is "arguably protected or arguably prohibited" by sections 7 and 8 of the NLRA. See International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 394, 106 S. Ct. 1904, 1914, 90 L. Ed. 2d 389 (1986).2 These sections protect the right of the employees to engage in collective bargaining and prohibit both management and labor from engaging in the enumerated unfair labor practices. 29 U.S.C. Secs. 157, 158. GM bears the burden of showing that the challenged conduct is arguably protected or prohibited by the NLRA. See Davis, 476 U.S. at 395, 106 S.Ct. at 1914. It presents three arguments designed to meet this burden and invoke NLRB jurisdiction. We deal with each argument in turn, reviewing them as did the district court; that is, after examining the record de novo we resolve all reasonable doubts and draw all reasonable inferences in favor of the non-movant, and then determine whether the movant is entitled to judgment as a matter of law. Schuster v. Martin, 861 F.2d 1369, 1371 (5th Cir.1988).

A. Mandatory Subjects of Bargaining.

First, GM contends that future employment eligibility is a mandatory subject of bargaining under 29 U.S.C. Sec. 158(d); hence, plaintiffs' claims about GM's representations necessarily implicate GM's good faith in bargaining, or in failing to bargain,3 over the future-employment issue. GM also asserts that its conduct was arguably prohibited or protected by the NLRA because section 8(a)(5) requires employers to bargain with union representatives before modifying policies that affect mandatory subjects of bargaining. See Armour & Co., 280 N.L.R.B. 824, 826 (1986).4

The district court assumed arguendo that the VTEP was a mandatory subject of bargaining, such that GM had a duty to bargain with union representatives over the VTEP.5 But the court concluded that the issue of future eligibility for rehire was not, in itself, a mandatory subject of bargaining so as to require GM to engage in bargaining over that issue as well: "The fact that the matter at issue here, eligibility for future employment, in retrospect could have been and perhaps should have been included within [the VTEP] does not render that topic a fortiori a mandatory subject of bargaining."

We agree. As plaintiffs observe, the company's evaluation and consideration of individual applicants for employment lies "at the very core of entrepreneurial control." The Supreme Court has held that these types of managerial decisions are not mandatory subjects of bargaining. See Ford Motor Co. v. NLRB, 441 U.S. 488, 498, 99 S. Ct. 1842, 1849, 60 L. Ed. 2d 420 (1979) (quoting Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 222, 85 S. Ct. 398, 409, 13 L. Ed. 2d 233 (1964) (Stewart, J., concurring)). An employer's failure or refusal to bargain over a non-mandatory subject does not violate section 8(a)(5).6 See NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349, 78 S. Ct. 718, 722, 2 L. Ed. 2d 823 (1958).

Thus, the fact that future eligibility for rehire might, in the context of the VTEP, have an economic value for those workers who accepted the plan, or that GM raised the issue during collective bargaining (a claim which plaintiffs contest), does not transmogrify a management prerogative into a mandatory subject of bargaining. The status of the issue of future eligibility does not change by virtue of its relation to, or even its purported inclusion in, a union-management agreement concerning other mandatory subjects of bargaining. See Wooster, id. As plaintiffs note, to hold otherwise would provide both management and labor with a "bootstrap" with which to make any bargaining subject a mandatory one.

B. Bargaining Directly with Employees.

Section 8(a)(5) of the NLRA requires employers to bargain in good faith with employee representatives. We have read that section to preclude employers from circumventing those representatives by bargaining directly with employees. See Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1317 (5th Cir.1988). GM asserts that in making its representations to the group of employees who attended the VTEP meetings, it engaged in conduct "arguably prohibited" by the NLRA. Thus, GM maintains that the NLRB is the appropriate forum to hear even the claims of those whose conduct the Act arguably prohibits; in even more basic terms, the implication of GM's argument is that if its conduct indeed was wrong, it is the Board that should declare it so. We hold, however, that Davis defeats GM's attempt to invoke the NLRB's exclusive jurisdiction in this fashion.

In Davis, the Court gave the following construction to the phrase "arguably protected or prohibited":

If the word 'arguably' is to mean anything, it must mean that the party claiming pre-emption is required to demonstrate that his case is one that the Board could legally decide in his favor. That is, a party asserting pre-emption must advance an interpretation of the Act that is not plainly contrary to its language and that has not been 'authoritatively rejected' by the courts or the Board. The party must then put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation.

476 U.S. at 395, 106 S. Ct. at 1914 (citations omitted). GM contends throughout its brief that its positions on the status of future employment eligibility as a bargaining subject and on the propriety (or impropriety) of its representations to the employees were not ones which the Board or courts have rejected authoritatively. But that contention, even if accepted, does not bring us to a resolution, for as the Court explains in the passage quoted above, the party attempting to invoke the Board's jurisdiction must then demonstrate that the Board could reasonably uphold that party's claim. The reason for this requirement is simple and instructive here: The exclusivity of the Board's administrative province, made necessary by the need for uniform treatment in labor disputes, may not serve as a shelter for those whose claims have no realistic chance of acceptance and no import for national labor policy. Cf. Gray v. Local 714, Int'l Union of Operating Eng'rs, 778 F.2d 1087, 1090 (5th Cir.1985) (employee's claim for fraudulent inducement not preempted by NLRA because alleged conduct was of only "peripheral concern" regarding federal law).

By its own cast, GM's argument concerning its "circumvention" of union representatives goes only to show that its conduct was arguably prohibited by the Board; hence, its claim could not reasonably be upheld by the Board.7 Nor does GM convincingly demonstrate the import of its claim for national labor policy: As plaintiffs observe, the challenged conduct here was not an attempt on the part of GM to interfere with the collective bargaining process or to diminish the union's representative role; instead, it was a post-bargaining effort to induce individual employees to accept VTEP benefits. While not dispositive,8 it is relevant that the parties had completed collective bargaining over the VTEP; GM's alleged inducements had no direct bearing upon the collective bargaining process in that they were not offered in order to obtain ratification of an agreement.9 For better or worse, the bargaining process had served its function, and the union representatives had fulfilled their role. It was then left to the individual employees to choose whether they would opt for the plan, and it is upon that choice that GM's alleged inducements operated.

C. Sweet Promises.

Finally, GM would have us hold that its representations at the VTEP meetings were protected expression under section 8(c) of the NLRA, which provides,

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. Sec. 158(c). Here, GM's contention is that its representations at the meetings amounted only to a statement of fact about the VTEP: Employees who opted for the plan were not eligible for rehire.

We cannot accept this characterization of the facts in the current procedural posture of the case. As we explain below, we find no provision in the VTEP that reasonably might be construed as governing the dispute over future eligibility. Making all reasonable inferences in favor of plaintiffs, we must conclude that GM's representations went beyond a recitation of what was contained in the VTEP. Hence, we can only construe GM's statements as a promise of benefit over and above what the VTEP offered. As such, GM's statements were not protected expression under section 158(c).

III. Preemption.

Holding as we do that the district court, and not the NLRB, had subject matter jurisdiction, we address GM's alternative claim that federal, rather than Mississippi, law governs this case.10 GM premises its preemption claims upon both section 301 of the LMRA and section 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1144(a). Though we agree with GM that the preemptive scope of these statutes is broad,11 we conclude that it is not so broad as to reach this case.

When resolution of a state law claim is substantially dependent upon analysis of the terms of an agreement made between parties to a labor contract, the claim must be treated as a section 301 claim. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S. Ct. 1904, 1915, 85 L. Ed. 2d 206 (1985).13 But section 301 is not implicated unless resolution of the state claim requires interpretation of a collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 1883, 100 L. Ed. 2d 410 (1988). The Court declared in Caterpillar Inc. v. Williams, 482 U.S. 386, 396, 107 S. Ct. 2425, 2431, 96 L. Ed. 2d 318 (1987), that "a plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement" (emphasis in original).14 Here, the district court concluded that no interpretation of the collective bargaining agreement or of the VTEP would be required in order to resolve the plaintiffs' claims.

GM presents a forceful argument that resolution of plaintiffs' fraudulent misrepresentation claims requires interpreting the terms of the collectively-bargained VTEP. Its claim is that in order to determine whether GM falsely represented the consequences of accepting the VTEP, there must be an examination and interpretation of the VTEP to determine what a truthful representation would have been. In such a case, it argues, preemption occurs. See Lingle.

However, GM's position is flawed in two important respects: First, it is not the case that section 301 preemption occurs whenever a collectively-bargained agreement becomes relevant to a dispute of this nature; rather, the resolution of the particular dispute must be "substantially dependent upon analysis of the terms" of the collective bargaining agreement. Lueck, 471 U.S. at 220, 105 S.Ct. at 1915. Second, the argument rests upon an unsound premise: namely, that the plaintiffs' claim is that GM's representatives fraudulently misrepresented what was in the contract. Instead, as plaintiffs observe, their claim was that GM fraudulently induced individual employees to opt for the VTEP by making an extraneous promise concerning their future employment eligibility. They do not claim that the promise had anything to do with the contents of the VTEP.

Thus, plaintiffs urge that they are not relying upon any contract at all, but only upon an inducement that was separate and apart from the VTEP, was not covered by it, and was never a subject of negotiation. It is GM that claims, as a defense, that the contract contemplates, albeit not expressly, the circumstances that eventually occurred and therefore must be "interpreted" in order to resolve these claims.

But that is not a defense to a fraudulent-inducement claim in this context. The dispute is a highly fact-bound one concerning what was said, or promised, at the meeting. The defense to such a claim is not that "the VTEP might be construed to say otherwise"; rather, it is that "we made no such representation" or that "no such representation could have been made given the VTEP's provisions."15

We recognize, as have other circuits, that the existence of an agreement nevertheless may invoke section 301 preemption where a court determines that the agreement contains provisions that might reasonably be construed as governing the disputed matter.16 6] The agreement might, for example, contain provisions that are contrary to the representations made, or might reserve the particular issue for further collective bargaining or preclude such inducements on the part of employer representatives. Under such circumstances, interpretation of the collective bargaining agreement, in the sense of construction and application of these provisions, would be required, and federal law probably would govern.17 But that is not the case here. After careful review of the VTEP, we find no provision that reasonably might be construed to govern the issue of future employment eligibility, nor are there "vague and ambiguous" references to eligibility that might be construed in GM's favor.

Therefore, we hold that where, as here, the employee/plaintiffs' state law claims are founded upon contractual rights or common-law rights independent of those which the collectively-bargained agreement creates, a defense that relies upon the provisions of a collectively-bargained agreement does not invoke federal preemption unless that agreement contains provisions that govern, or reasonably might be construed as governing, the circumstances at hand.18 Contrary to GM's assertions here, a court's perusal of the agreement to determine whether such provisions are contained within it does not constitute "interpretation" of that agreement.

Because no governing provision can be found in the VTEP,19 resolution of the plaintiffs' claims is not inextricably intertwined with the agreement in the sense described by the Lueck/Hechler/Lingle line of cases.20 Under these narrow circumstances, the rationale supporting section 301 preemption, i.e., avoiding the danger of inconsistent interpretations of collectively-bargained labor agreements, is not at work. Mississippi has a deeply-rooted interest in protecting its citizens from fraudulent conduct, and unlike the federal scheme, provides remedies designed to compensate the victims of fraud for economic harm they may have suffered as a result of their reliance upon false promises. See Moore, 739 F.2d at 317 (Fagg, J., dissenting); Berkline, 453 So. 2d at 702. Accordingly, we conclude that there is no federal preemption here.

The resolution of GM's ERISA preemption claim turns on whether the VTEP constitutes an "employee benefit plan" within the meaning of the statute. Relying principally upon the Supreme Court's recent decision in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S. Ct. 2211, 96 L. Ed. 2d 1 (1987), we conclude that the VTEP is not such a plan.22

In Fort Halifax, the Court held that ERISA did not preempt a state statute requiring employers to provide a one-time severance payment to employees in the event of a plant closing. The Court based its decision upon several factors: First, ERISA refers to employee benefit plans, not employee benefits. Second, the goal of ERISA's preemption provision is to provide a single set of administrative practices for benefit plans in order to avoid a patchwork scheme of regulation. However,

[t]his concern only arises ... with respect to benefits whose provision by nature requires an ongoing administrative program to meet the employer's obligation. It is for this reason that Congress pre-empted state laws relating to plans, rather than simply to benefits. Only a plan embodies a set of administrative practices vulnerable to the burden that would be imposed by a patchwork scheme of regulation.

Id. at 11-12, 107 S.Ct. at 2217 (emphasis in original). Because the Maine statute did not require employers to maintain employee benefit plans, and because there was no need to create an administrative scheme to make a one-time lump payment, the Court held that the ERISA pre-emption provision did not apply.

The operative facts in Fort Halifax are remarkably similar to those in the instant case. GM established a procedure by which employees could elect to receive a one-time lump payment if they ceased working at the plant. The plan was not ongoing, nor was there any need for continuing administration of the payment program (though employees could elect a two-year installment payment option). The facts that GM made the payments pursuant to a Voluntary Termination of Employment "Plan " and that the employees received a benefit do not convert the plan into an "employee benefit plan" for purposes of ERISA.

IV. Conclusion.

Holding as we do that the district court had subject matter jurisdiction over the plaintiffs' state-law fraudulent inducement claim and that that claim is not preempted by federal law, the district court's denial of GM's summary judgment motion is in all respects AFFIRMED. This cause, here on interlocutory appeal, is REMANDED to the district court for further proceedings consistent herewith.

The plaintiffs complain only of GM's representations to persuade them individually to choose the severance payment. GM does not demonstrate any relationship between the VTEP and its decision not to rehire the plaintiffs. I concur in the judgment.