*

The Honorable Stephen M. Reasoner, United States District Judge for the

Eastern District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3669

___________

Donald Bass; Amalgamated Transit *

Workers Union, Local 1356, *

*

Appellees, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

City of Sioux Falls, a Municipality *

Chartered under the Constitution of the *

State of South Dakota; Ryder/ATE, Inc., *

a Delaware corporation, *

*

Defendants, *

*

SuTran, Inc., a South Dakota *

corporation, *

*

Appellant. *

___________

Submitted: June 17, 1999

 Filed: August 10, 1999

___________

Before MURPHY and MAGILL, Circuit Judges, and REASONER,*

 District Judge.

___________

MAGILL, Circuit Judge.
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SuTran, Inc. appeals the district court's grant of summary judgment in favor of

Donald Bass and the Amalgamated Transit Workers Union, Local 1356 (Union),

requiring it to arbitrate Bass's grievance concerning his discharge from employment.

We reverse and remand.

I.

Since December 1992, the City of Sioux Falls, South Dakota has contracted with

two different companies to operate and manage its transit system. Transit Management

of Sioux Falls, Inc., a wholly owned subsidiary of Ryder/ATE, Inc., managed and

operated the transit system until March 1, 1996, when SuTran took over the transit

system's management and operation. The Union has been the designated collective

bargaining representative for the transit system's operating and maintenance employees,

including Bass, at all relevant times. 

In November 1995, just three months before the end of its contract with the City,

Ryder/ATE discharged Bass from employment. In accordance with the procedures set

forth in the Union's collective bargaining agreement with Ryder/ATE, Bass filed a

grievance challenging his discharge. Ryder/ATE denied the grievance and, on

December 20, 1995, the Union's president, Chester Thompson, requested arbitration.

Ryder/ATE, knowing that SuTran was going to be taking over the transit system's

operation and management, never took any action on the Union's request for arbitration.

During a meeting on February 29, 1996, the day before SuTran took control of

the transit system, SuTran's representative, Bruce Abel, suggested to the Union that

SuTran would consider arbitrating Bass's grievance when it took control.

Notwithstanding Abel's representations during that meeting, Bass's grievance has yet

to be arbitrated. 
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After waiting more than ten months for SuTran to formally acquiesce to the

arbitration request, Bass and the Union filed the present suit to compel arbitration in

January 1997. SuTran filed a motion for summary judgment, contending, inter alia, that

the suit was barred by the six-month statute of limitations set forth in Section 10(b) of

the National Labor Relations Act, 29 U.S.C. § 160(b). In support of its motion, SuTran

submitted an affidavit executed by Abel, wherein he stated that "[o]n several occasions

in March, 1996, although the exact dates are unknown to me . . . I . . . told Mr.

Thompson that SuTran would not participate in any arbitration regarding Mr. Bass' [sic]

discharge . . . ." Abel Aff. at ¶ 4. According to SuTran, plaintiffs' cause of action to

compel arbitration accrued when Abel made these statements. In opposition to

SuTran's motion for summary judgment, and in support of their own cross-motion for

summary judgment, plaintiffs submitted an affidavit executed by Thompson, who

averred that Abel never told him that SuTran refused to arbitrate Bass's grievance. 

When ruling on the parties' cross-motions for summary judgment, the district

court refused to give any credence to Abel's affidavit, finding that it contradicted Abel's

testimony during a previous deposition concerning a meeting between himself and the

Union on March 12, 1996. The portions of the supposedly contradicted deposition

testimony are as follows:

Q. Well, do you have any recollection about whether or not this March

12, 1996, meeting was marked by a comment by you or Mr. Kibler that

SuTran was not responsible for arbitrating the Don Bass matter?

A. It's difficult for me to say because it does not appear, it's not listed as

an item of discussion.

Q. All right.

A. However, again, from our perspective I do not have substantive notes

regarding the Don Bass issue because it had been our articulated position

throughout [our negotiations to take over the management of the transit
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system from Ryder/ATE] that it is a non-issue from our perspective

because we didn't deal with employee issues from individuals who are not

employees.

Abel Dep. at 52. The district court held that this deposition testimony conflicted with

Abel's affidavit testimony because the deposition testimony did not indicate when Abel

ever specifically informed Thompson or the Union that SuTran would not arbitrate the

grievance. On that basis, the district court refused to consider Abel's affidavit

testimony when ruling on the parties' cross-motions for summary judgment.

After refusing to consider Abel's affidavit, the district court found that

Thompson's affidavit was unchallenged and that plaintiffs' petition to compel arbitration

was not time-barred. The court then granted plaintiffs' motion for summary judgment

and ordered the parties to proceed to arbitration. SuTran now appeals.

II.

We review the district court's grant of summary judgment de novo. See Mayard

v. Hopwood, 105 F.3d 1226, 1227 (8th Cir. 1997). We review the evidence in the light

most favorable to the nonmoving party and will affirm the grant of summary judgment

only if "there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law." Id. at 1227-28 (internal quotation marks omitted); see

also Fed. R. Civ. P. 56(c).

The parties agree that plaintiffs' action to compel arbitration is governed by the

six-month limitations period set forth in Section 10(b) of the National Labor Relations

Act, 29 U.S.C. § 160(b). See United Rubber, Cork, Linoleum, & Plastic Workers of

Am., Local 164 v. Pirelli Armstrong Tire Corp., 104 F.3d 181, 183 (8th Cir. 1997).

The parties further agree that this court should utilize the standard enunciated in United

Food & Commercial Workers Union Local No. 88 v. Middendorf Meat Co., 794 F.
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Supp. 328 (E.D. Mo. 1992), aff'd, 991 F.2d 801 (8th Cir. 1993) (table), to determine

when plaintiffs' cause of action accrued. The Middendorf Meat court held that "[a]

cause of action to compel arbitration under a collective bargaining agreement accrues

when one party clearly articulates its refusal to arbitrate the dispute." Id. at 332 (citing

cases from the First, Fifth and Sixth Circuits). 

It is clear that summary judgment would have been inappropriate if the district

court had credited Abel's affidavit. In his affidavit, Abel averred that he "told Mr.

Thompson that SuTran would not participate in any arbitration regarding Mr. Bass' [sic]

discharge" on several different occasions in March of 1996. Abel Aff. at ¶ 4. If this

is true then plaintiffs' cause of action to compel arbitration accrued in March of 1996,

more than nine months before they filed the instant suit. Thompson's denial of

receiving any such information from Abel would merely create a dispute as to a

material issue of fact. Indeed, plaintiffs specifically argued to the district court that

Abel's and Thompson's conflicting affidavits created a "disputed issue of material fact

about whether there was a clearly articulated refusal to arbitrate by SuTran" in March

of 1996. Pls.' Br. in Resistance To Defs.' Mots. For Summ. J. at 6.

Therefore, we must determine whether the district court properly refused to

credit Abel's affidavit when ruling on the parties' cross-motions for summary judgment.

We hold that the district court erred in this regard.

It is well-settled that "[p]arties to a motion for summary judgment cannot create

sham issues of fact in an effort to defeat summary judgment." American Airlines, Inc.

v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997). Consequently,

a party should not be allowed to create issues of credibility by

contradicting his own earlier testimony. Ambiguities and even conflicts

in a deponent's testimony are generally matters for the jury to sort out, but

a district court may grant summary judgment where a party's sudden and
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unexplained revision of testimony creates an issue of fact where none

existed before. Otherwise, any party could head off a summary judgment

motion by supplanting previous depositions ad hoc with a new affidavit,

and no case would ever be appropriate for summary judgment.

Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir. 1988) (internal

citations and quotation marks omitted).

We find that Abel's affidavit testimony neither contradicts his deposition

testimony nor constitutes a "sudden and unexplained revision of testimony [that] creates

an issue of fact where none existed before." Id. In contrast, Abel's affidavit testimony

seems consistent with his deposition testimony. In his deposition, Abel testified that

he had no meeting notes concerning Bass's discharge because (1) he considered Bass's

grievance a non-issue prior to the March 12, 1996 meeting and (2) he had previously

articulated this position to the Union. This is consistent with his affidavit testimony

averring that he told Thompson numerous times in March of 1996 that SuTran would

not arbitrate Bass's grievance. Certainly, the testimonies are not inconsistent, and the

affidavit testimony cannot be said to constitute a sudden and unexplained revision of

the deposition testimony. The fact that Abel's deposition testimony does not identify

a specific time or date on which he informed Thompson or the Union of SuTran's

position concerning the grievance does not render his subsequent affidavit testimony

inconsistent or revised. He had no duty to volunteer such information during the

deposition absent a question from plaintiffs' counsel seeking that information.

Accordingly, the district court erred in disregarding Abel's affidavit.

Because the district court should have considered Abel's affidavit when ruling

on the parties' cross-motions for summary judgment and because a disputed issue of

material fact exists concerning whether and when Abel informed the Union that SuTran

would not arbitrate Bass's grievance, we hold that the district court erred in granting

summary judgment in favor of plaintiffs. Consequently, we remand this matter to the
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district court to make findings of fact concerning when, if ever, SuTran clearly

articulated its refusal to arbitrate the Union's grievance concerning Bass's discharge.

See United Rubber, 104 F.3d at 183-84 (holding that district court has jurisdiction to

determine the timeliness of a petition to compel arbitration and when the six-month

statute of limitations begins to run under 29 U.S.C. § 160(b)).

III.

For the foregoing reasons, we REVERSE the district court's decision and

REMAND this case for further proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.