GENE COLLINS, DBA Southern Nevada Flaggers & Barricades v. Laborers International Union of North America Local No 872;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GENE COLLINS, DBA Southern Nevada
Flaggers & Barricades,
Plaintiff-Appellant,
and
SIX STAR CLEANING & CARPET
SERVICE, INC.; et al.,
Plaintiffs,
v.
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA LOCAL NO 872; et
al.,
Defendants-Appellees.
No. 21-16819
D.C. No.
2:11-cv-00524-GMN-DJA
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted December 6, 2022
San Francisco, California
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
FILED
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: LUCERO,** BRESS, and VANDYKE, Circuit Judges.
Plaintiff-Appellant Gene Collins, doing business as Southern Nevada
Flaggers & Barricades, appeals the district court’s order denying his and his co-
plaintiffs’ motion to vacate an arbitrator’s decision ruling against them on three of
their claims. We issued a limited remand for the district court to consider issuing a
partial final judgment on those three claims, which it did, giving us jurisdiction over
this appeal under 28 U.S.C. § 1291. We now affirm the district court’s denial of
vacatur.
We review de novo a district court’s “decision to vacate or confirm an
arbitration award.” PowerAgent Inc. v. Elec. Data Sys. Corp., 358 F.3d 1187, 1193
(9th Cir. 2004).
A district court may vacate an order “where there was evident partiality or
corruption in the arbitrators.” 9 U.S.C. § 10(a)(2). A plaintiff can establish evident
partiality based on an arbitrator’s failure to disclose facts that create “a reasonable
impression of partiality.” Schmitz v. Zilveti, 20 F.3d 1043, 1046 (9th Cir. 1994)
(citation omitted). Collins contends that certain facts the arbitrator, Dennis Kist,
failed to disclose meet that standard. But all the undisclosed facts are either too
insubstantial or too “long past” to create a reasonable impression of partiality,
** The Honorable Carlos F. Lucero, United States Circuit Judge for the U.S. Court
of Appeals for the Tenth Circuit, sitting by designation.

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whether considered individually or cumulatively. Monster Energy Co. v. City
Beverages, LLC, 940 F.3d 1130, 1135 (9th Cir. 2019) (citation omitted).
Kist disclosed that he was president of another union, Local 720, but
apparently provided the wrong date for when he finished that role, stating that he
stopped being president two years earlier than he actually did. But this was a trivial
omission, particularly since Kist accurately conveyed the total number of years he
served as president and because he completed his tenure more than two decades
before his involvement in this case. See New Regency Prods., Inc. v. Nippon Herald
Films, Inc., 501 F.3d 1101, 1110 (9th Cir. 2007) (citation omitted).
Kist also did not disclose that, during his presidency, Local 720 was subject
to a consent decree prohibiting racial discrimination. The plaintiffs’ claims in this
case involve racial discrimination, but the undisclosed decree does not create a
reasonable impression of bias. The decree was issued ten years prior to Kist’s tenure
as president, was against a variety of entities, and was not a “finding on the merits”
of any legal violation. See Lagstein v. Certain Underwriters at Lloyd’s, London,
607 F.3d 634, 646 (9th Cir. 2010). Moreover, Collins offers no evidence of how the
consent decree was relevant to Kist’s role as president over a decade after it was
entered. See id.
Collins also argues that undisclosed facts about Kist’s relationship with Local
872’s counsel, David Rosenfeld, create a reasonable impression of bias. In a 1996

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lawsuit in which Rosenfeld was representing Local 720, he examined Kist as a
witness. The examination lasted for approximately twenty-one pages of the hearing
transcript. Rosenfeld’s law firm also worked with Kist as co-counsel in four cases
decades ago, but Collins fails to show that Rosenfeld himself worked with Kist on
these cases. Neither Kist’s involvement in the 1996 lawsuit as a witness nor the fact
that Rosenfeld’s firm was co-counsel with arbitrator Kist in a few cases that ended
twenty years ago creates a reasonable impression that Kist was biased in favor of
Rosenfeld or his client. See In re Sussex, 781 F.3d 1065, 1074 (9th Cir. 2015)
(rejecting the petitioner’s evident bias argument as “attenuated and insubstantial”
(cleaned up)).
A district court may also vacate an award “where the arbitrators exceeded
their powers.” 9 U.S.C. § 10(a)(4). An arbitrator exceeds his power “when it is clear
from the arbitral opinion or award that the arbitrator did not base his decision on an
interpretation of the collective bargaining agreement or that he disregarded what the
parties put before him and instead followed his own whims or biases.” Garvey v.
Roberts, 203 F.3d 580, 588–89 (9th Cir. 2000). Collins’s arguments that Kist
exceeded his powers are not persuasive, particularly given the “nearly unparalleled
degree of deference” we afford arbitrator decisions. Stead Motors of Walnut
Creek v. Auto. Machinists Lodge No. 1173, Int’l Ass’n of Machinists & Aerospace
Workers, 886 F.2d 1200, 1205 (9th Cir. 1989).

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Kist concluded that all three of the plaintiffs’ claims failed because their
contract with Local 872 required that they exhaust their remedies by filing
grievances with Local 872, which they never did. Kist rejected the plaintiffs’
argument that filing grievances would have been futile. Although Kist noted that
some plaintiffs had asked two business agents for Local 872 to file a grievance on
their behalf against the union, he concluded these facts did not demonstrate futility
because those agents represented Local 872, and Local 872 “does not file grievances
against itself.” Contrary to Collins’s assertions, Kist based his decision on his
interpretation of the contract and did not act merely on his “whim” when he
concluded that these agents were not the appropriate parties to file grievances against
Local 872. Garvey, 203 F.3d at 588–89. We cannot conclude Kist exceeded his
powers when he determined that the plaintiffs failed to demonstrate it would have
been futile for them to properly file grievances.
Kist also rejected the plaintiffs’ argument that submitting grievances would
have been futile because of Local 872’s racial animus. John Stevens (a former Local
872 field representative) testified before Kist that Defendant Tommy White (Local
872’s business manager and treasurer) told Stevens that Stevens “should not deal
with these ‘n****r’ contractors and that they will stab him in the back.” (Alteration
made). Kist discredited Stevens’s testimony, however, because it was vague and
contradictory. The record reflects that Stevens’s testimony was inconsistent and

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vague at times, so we cannot conclude that Kist was acting on his mere whim when
he discredited Stevens’s testimony. Collins has not shown that Kist exceeded his
authority in rejecting the plaintiffs’ racial animus argument for futility.
AFFIRMED.

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