                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 06-3205
                                 ___________

Lester Cole; Donnie A. Bohac;            *
Darlene M. Akins; Kenneth D.             *
Akins; Theodis Alford; Larry G.          *
Allison; Charles E. Anderson;            *
David M. Bailey; Rodney M. Bailey;       *
Charles O. Barton; Billy R. Basham;      *
Ronald K. Belloir; Clarence Bennett;     *
Glenda J. Boggs; Boris Bolf; John        *
D. Bourisaw; Edward G. Branham Jr.;      *
Paul J. Branson; Jodie L. Brown; Keith   *
E. Buddemeyer; Ellen C. Bullock;         *
Shelley M. Burnett; Grady L. Byers;      *
Linda Calhoun; Dorsey J. Campbell;       *
Henry R. Chatman; Alice F. Clinton;      *
Vonnie E. Coke Jr.; Virgil W. Conway;    *
Dennis R. Crawford; Jerry L. Crocker;    *
Daniel B. Dace; Jesse K. Degonia;        *
William L. Deweese; Jim W. Duncan;       *
Kenneth A. Durbin; Michael O. East;      *
Michael Eichenseer; Richard E. Elpers;   *
Terry D. Emory; Robert D. Farris;        *
Dale L. French; Randall K. Fryer;        *
Michael L. Fults; Linda Glover;          *
Robert M. Goodson; Ronald L. Griffin;    *
Bruce A. Hammonds; Dennis R.             *
Hardesty; Dennis K. Hill; John A.        *
Hood; Emerson B. House; Richard L.       *
House; Quentin Hudson; Charletta         *
Hurst; Neil G. Huskey; Michael D.        *
Jackson; Phillip Jackson; Michael        *
Jarvis; Eugene M. Jett; Ethel B.         *
Johnson; Johnny R. King; Dennis          *
Kipping; Jack L. LaMar; Robert L.    *
Marshall; Louis Maxwell; Randy M.    *
Mays; Edward A. McClain; Johnnie     *
M. Melton; Donna G. Messmer; Nancy   *
L. Mittendorf; Margaret Morrow;      *
Robert D. Myers; Roy A. Nelson;      *
Danny J. Nixon; Donald Nolin; Dimitry*
Oransky; Edward A. Parker; John W.   *
Picou; William H. Pierce Sr.; Otis Poe;
                                     *          Appeal from the United States
Michael J. Pruneau; William Record;  *          District Court for the Eastern
Delores Reed; Gary W. Renshaw;       *          District of Missouri.
Patrick J. Rhoads; Jerry E. Richardson;
                                     *
David G. Rosenbaum; Oliver T.        *
Rosener Jr.; Bobby D. Sales; Frances *
A. Schmidt; Robert G. Schmidt;       *
Richard J. Schroeder; George E.      *
Sebree Jr.; Mary E. Shelby; Danny R. *
Sigman; George H. Simpson; Danny     *
R. Smith; Lonnie P. Smith; Michael A.*
Smith; Joe Sneed; Scott J. Sopher;   *
Hildagarde A. Spears; Steven M.      *
Steadman; Elmer C. Stevenson;        *
Clarence Stewart; Nolan R. Tinnin;   *
Steve R. Urban; Charles W.           *
Vollmer Sr.; Gary Wagner; Bonnie     *
R. Walls; Earnestine Watkins; Bradford
                                     *
W. White; James L. Williams; Thomas  *
B. Wilson; Frank E. Winkler; Levi    *
Wright Jr.; Floyd L. Zinn;           *
Mark Zuniga,                         *
                                     *
             Plaintiffs-Appellants,  *
                                     *
      v.                             *
                                     *
International Union, United          *
Automobile, Aerospace & Agricultural *


                                          -2-
Implement Workers of America;         *
International Union, United           *
Automobile, Aerospace                 *
& Agricultural Implement Workers      *
of America, Local 110; International  *
Union, United Automobile,             *
Aerospace & Agricultural Implement    *
Workers of America, Local 136;        *
DaimlerChrysler Corporation,1         *
                                      *
             Defendants-Appellees.    *
                                 ___________

                              Submitted: October 19, 2007
                                 Filed: July 17, 2008
                                  ___________

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

       Appellants, 119 recently retired employees of DaimlerChrysler Corporation
(Chrysler) plants in St. Louis, brought suit against Chrysler and their local and
international unions (the Unions) after Chrysler offered an early retirement
opportunity through an Incentive Program for Retirement (IPR) that failed to apply
retroactively to recent retirees. Appellants alleged that past practices created an
implied contract term requiring Chrysler to include recent retirees in any IPR offers
and that failure to do so constituted a breach of contract. As to the Unions, Appellants
alleged the Unions breached a duty of fair representation by failing to require Chrysler



      1
         On August 20, 2007, Defendant DaimlerChrysler Corporation informed the
court of a change in its name to “Chrysler LLC.” We acknowledge the change but
maintain the caption as originally filed.

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to comply with past practices. The district court2 granted summary judgment in favor
of Chrysler and the Unions, reasoning that the IPR is part of an employee pension
benefits plan governed by the Employee Retirement Income Security Act (ERISA),
29 U.S.C. § 1001 et seq., and that Appellants failed to allege a breach of a written
contract term, as required under ERISA. Because the appellants could not establish
a breach of contract by Chrysler, the court concluded the claim against the Unions also
failed because a breach of contract by the employer is an essential element of a claim
alleging a breach of a union’s duty of fair representation. We affirm.

I.    Background

       Appellants worked at Chrysler plants in St. Louis, Missouri, and retired from
Chrysler between September 30, 2003 and November 30, 2004. All were members
of the Unions. During the time Appellants worked at Chrysler, the terms of their
employment were governed by a Collective Bargaining Agreement entered into by
Chrysler and the Unions. A Pension Agreement setting forth the terms of a Pension
Plan was incorporated into the Collective Bargaining Agreement. In addition, a Letter
Agreement Chrysler and the Unions reached in 2001 outlined the IPR, which was
designed to encourage eligible workers to retire so as to reduce Chrysler’s costs in
certain markets. The 2001 Letter Agreement was incorporated into the Pension
Agreement when it was renewed in 2003.

       Chrysler made IPR offers available to St. Louis Chrysler workers twice in 2001
and twice in 2002. The terms of these offers followed those outlined in the 2001
Letter Agreement. Despite contrary terms in the Letter Agreement, however, each of
these offers was made available to recent retirees, a practice widely known as a
“sweep in.” Between September 30, 2003 and December 10, 2004, Chrysler offered


      2
        The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.

                                         -4-
IPR incentives in markets other than St. Louis, and most or all of these offers did not
include sweep in provisions. On December 11, 2004, Chrysler and the Unions agreed
to the new IPR offer for St. Louis workers; the offer did not include a sweep in
provision for recent retirees. The terms of the December 2004 offer were more
generous than those previously offered in St. Louis and differed from the terms
included in the 2001 Letter Agreement.

       After Chrysler and the Unions announced the St. Louis retirement incentive
offer in December 2004, Appellants requested retroactive inclusion into the plan.
Chrysler rejected the addition of a sweep in to the offer, and the Unions declined to
pursue a grievance based upon that decision.

       Appellants filed suit. They alleged Chrysler breached an implied term of the
Collective Bargaining Agreement to sweep in recent retirees in IPR offers. They
asserted the Collective Bargaining Agreement was amended by Chrysler’s past
practice of retroactively applying IPR offers to recent retirees. Appellants also
brought a claim against the Unions, alleging the Unions breached the statutory duty
of fair representation by failing to require Chrysler to comply with the past practice
of including sweep ins in IPR offers. Both causes of action arise under section 301(a)
of the Labor Management Relations Act, 29 U.S.C. § 185(a).

        Chrysler and the Unions moved for summary judgment, arguing that because
the IPR is part of a pension plan governed by ERISA, and such plans can only be
amended in writing, Appellants could not rely on an alleged breach of an implied term
of the Collective Bargaining Agreement for their cause of action. In responding to the
motion for summary judgment, Appellants did not address whether ERISA governed
the IPR. Appellants claimed that ERISA coverage was irrelevant, and instead argued
that ERISA does not preempt federal labor law. The district court concluded the IPR
is part of a pension plan governed by ERISA and granted summary judgment in favor
of Chrysler and the Unions. This appeal followed.

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II.   Discussion

      A.     Waiver

      Chrysler contends Appellants are barred from challenging the applicability of
ERISA to the IPR on appeal because they did not contest the issue below. Appellants
contend they did contest ERISA’s applicability.

       In general, “this court will not consider arguments raised for the first time on
appeal.” Wiser v. Wayne Farms, 411 F.3d 923, 926 (8th Cir. 2005) (quotation
omitted). As such, a party cannot assert arguments that were not presented to the
district court in opposing summary judgment in an appeal contesting an adverse grant
of summary judgment. See Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1014 (8th
Cir. 2006) (declining to reverse a grant of summary judgment based upon an argument
not raised below); O.R.S. Distilling Co. v. Brown-Forman Corp., 972 F.2d 924, 926
(8th Cir. 1992) (stating that the party opposing summary judgment waived arguments
by failing to present them to the district court). We may notice plain error despite a
failure to raise the issue below, “but we generally do so only to prevent a miscarriage
of justice.” Matthews v. Riverwood Int’l Corp., 37 F.3d 1502 (8th Cir. 1994)
(unpublished) (per curiam); see also St. Mary’s Hosp. v. Leavitt, 416 F.3d 906, 915
n.8 (8th Cir. 2005) (noting the court found no plain error after rejecting a party’s
attempt to raise an issue on appeal that was not presented to the district court).

       Chrysler based its motion for summary judgment on the application of ERISA
to the IPR, squarely presenting the issue to Appellants. Appellants chose not to
address the issue of ERISA’s applicability to the IPR, describing the question as
“interesting,” but concluding “it is ultimately irrelevant in deciding [Chrysler’s]
Motion for Summary Judgment in the case at bar.” Appellants noted that their
complaint did not “invoke ERISA coverage, or dispute ERISA coverage for that

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matter.” Appellants stated they were “tempted to concede that the IPR is within the
purview of ERISA,” but they did not explicitly so concede.

      We conclude Appellants did not sufficiently present an argument against the
applicability of ERISA to the IPR in the district court to preserve their right to do so
on appeal. Their argument is therefore waived. We find no miscarriage of justice
warranting further analysis.

      B.     ERISA Applicability

      Even if we were to consider the merits of Appellants’ argument, however, their
appeal fails. “[W]hether an employee benefits plan is governed by ERISA is a mixed
question of fact and law which we review de novo.” Petersen v. E.F. Johnson Co.,
366 F.3d 676, 678 (8th Cir. 2004). We conclude the district court did not err in
finding the IPR is part of an ERISA-governed employee pension plan.

       An ERISA-governed employee pension benefit plan is defined, in relevant part,
as “any plan, fund, or program which was . . . established or maintained by an
employer . . . to the extent that by its express terms . . . such plan, fund, or program
. . . provides retirement income to employees.” 29 U.S.C. § 1002(2)(A). The
Supreme Court has emphasized that ERISA governs benefit plans, not benefits
standing alone. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7–8, 11–12 (1987).
As such, to qualify as a “plan” under ERISA, an employer’s pension program must
involve an ongoing administrative scheme. Id. at 11–12. We have previously
identified a number of factors to consider in determining whether a plan has the
requisite administrative scheme to qualify as an ERISA benefit plan. Petersen, 366
F.3d at 679. These include: (1) whether the income is provided in a lump-sum
payment or over time; (2) whether the employer undertook any long-term obligations;
(3) whether the benefits come due upon the occurrence of a single, unique event; and



                                          -7-
(4) whether the contested program required the employer to engage in a case-by-case
review of employees. Id.

       Much of Appellants’ argument against ERISA coverage turns on whether the
December 2004 IPR offer is a stand-alone provision or part of a larger benefit plan.
Appellants view the IPR offer in isolation; they define the plan as only the 2004
retirement incentive offer to St. Louis employees. We conclude such a
compartmentalized approach is improper.

       We faced a similar challenge in Stearns v. NCR Corp., 297 F.3d 706 (8th Cir.
2002). In Stearns, the parties contested whether an enhanced retirement program was
an amendment to a pre-existing employee welfare benefit plan or “an independent
ERISA plan, separate from the broader Group Benefits Plan.” Id. at 711. We
concluded that the retirement program was an amendment to the existing plan, and not
an independent ERISA program. Id. In reaching our decision, we considered the
following factors: (1) the materials explaining the retirement program required
reference to the existing plan for comprehension; (2) the retirement program materials
specifically referenced the existing plan; and (3) the documents adopting the
retirement program specified it was an amendment to the existing benefit plan. Id; see
Wilson v. Moog Auto., Inc. Pension Plan, 193 F.3d 1004, 1008 (8th Cir. 1999)
(finding a plant-closing agreement to be part of an ERISA plan when the plan
referenced and attempted to incorporate the closing agreement and the plant-closing
agreement directed readers to consult an existing ERISA plan).

       Because the 2004 St. Louis IPR offer is one of a series of IPR offerings
Chrysler and the Unions bargained for using the Letter Agreement as a foundation, it
is myopic to view the 2004 St. Louis offer in isolation. The offer must be viewed in
the larger structure of the Pension Agreement to make sense. Only those eligible for
other pension benefits could qualify for this, or any other, IPR offer. Moreover, the
IPR is an “Incentive Program for Retirements.” As evidenced by the multiple

                                         -8-
offerings with different terms at different locations, IPR is a program, not an isolated
offering at any one location. And, the IPR program was premised upon the Letter
Agreement, which was incorporated in the Pension Agreement in 2003. As such, we
conclude the district court did not err in treating the December 2004 IPR offer as part
of the larger Pension Agreement and not as a stand-alone ERISA program.

       Without question, the Pension Agreement, incorporating the IPR, constitutes
an employee benefit plan under ERISA. It clearly involves an ongoing administrative
regime and meets the standards outlined in Petersen, 366 F.3d at 679. Because the
IPR is part of an ERISA-governed plan, Appellants’ claims against both Chrysler and
the Unions fail as (1) it is undisputed that an ERISA-governed plan can only be
amended in writing, see Walker v. Nat’l City Bank of Minneapolis, 18 F.3d 630, 632
(8th Cir. 1994) (“Congress expressly required that all [ERISA plan] terms, in order
to be enforceable, be written.”), and Appellants allege Chrysler breached an implied
term, not a written term, and (2) a breach of contract by the employer is a necessary
prerequisite to a claim against a union for a breach of the union’s duty of fair
representation, Scott v. UAW, 242 F.3d 837, 840 (8th Cir. 2001) (stating that
employee must prove both a breach by the employer and a breach of duty of fair
representation by the union to succeed in a fair representation claim against a union).

III.   Conclusion

       For the reasons outlined above, we affirm the judgment of the district court.


                        ______________________________




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