david rosenfeld on behalf of the appellant to union the district council trainers in essence this is really a dispute about how far the courts are willing to trust an arbitrator under a collective bargaining agreement interpreted the collective bargaining agreement to the contrary just walker in his memory and decision says i find that the critical section in section one only operates within the metropolitan dallas area which is where the texas local is headquartered he interpreted that provision to be limited to that area when plainly it applied to the whole jurisdiction of the local he said because i find section one the other case company arizona was served appeared but they're out of the case we're not pursuing them right because you don't have a contract with them zachary if they're a different company then then there's nothing to talk about well there are different company but of course our positions they're controlled by text and that's the problem isn't it that really the issue well from judge walker's point of view it is but from my point of view it isn't because that is also a question of arbitration that is what the record is this is not clear here and i certainly can't establish on this record that the envy of texas control this jobsite in san jose and i think it judge walker and is or is the district court deciding i would to build the question or is it the arbitrator in deciding whether there's a contract violation and i think we've established very clearly that because this is a very broad grievance procedure in the district council sixteen agreement which we said should be enforced under the out of area clause even the question of the interpretation of section one the question of workers who also work for being gay in texas and said wait a minute you're out here working and this is a violation of the out of area cost because you should be paid according to either our green or the  it only slightly different to say that our position is that the texas company violated the agreement by this arrangement whereby being legal i asked which has all these commonalities is doing the work in san jose  is the question of whether the text is something he's doing or a question for arbitration that is to go to arbitration you usually have to get somebody who signed  different company it's the name is different it's controlled by somebody else so you haven't shown that it's really the same for enforcement of the main one is that a question that has to be arbitrated if it's a dispute or controversy over the interpretation of the agreement yes but answer so that you can then go forward in arbitrate yes or no you know if letting on how it's answered then you arbitrate under the texas the agreement signed by texas if in fact they're one and the same and there's actual control then you go to arbitration to figure out the answer but if there's not actual control isn't that something is that like a gate keeping function on that one issue that the district court and it's because you established council argues that if you look at other language manga now it's more than actual right of control or control you actually have to exercise the control that's what you had with status in the district court our point job and the prize about to get to is that judge walker i think turned the burden of proof on its head by saying that we had to establish to a preponderance of it's still up to the arbitrator to figure out whether the mencken l clauses been violated or whether if it has been violated whether it can be applied under these circumstances legally or illegally you know  back to the steelworkers trilogy and and the american manufacturer says unions have the right to even proceed through the list grievances and tried to clear the air to resolve problems and whether or not we're right or not we think we are we have the right to have the arbitrator be the gate keeper and say this is obviously what i did to the side it union your right or wrong on that issue of interpretation of the main you know cause section one of the co off the path here which is that we would have faced the argument not that there's a jurisdictional question but that it's not our trouble because section one the n b a texas would have forcefully argued can't be applied in the grievance procedure is broad enough to encompass any controversy or dispute over the interpretation of the agreement unless you can find some other exception i mean if it's that broad then issues before the court is an issue of jurisdiction and the court the district court has to determine its jurisdiction before it orders anybody to arbitration before it entertains the case and so for that cut bait on all minimum contacts analysis you know was laid out in an opening pre fund a motion to dismiss and district sixteen came back and said that's all irrelevant they in effect conceded that the texas company has no contacts with the state of california that texas company has is doing no business in california but district council sixteen argue that b in b texas had submitted to the jurisdiction of the california courts by virtue of consent by virtue of an agreement that it had made now the district council sixteen and seated before the district court that that was unprecedented relief and it's worth reviewing just for a minute how unprecedented that relief really is a district council sixteen asserts that being the texas consented to jurisdiction to enforce not an agreement that being the texas entered into by district sixteen agreement business in some way if b and b texas is loaning its employees and getting paid or you know if you have to show that the texas company which is the signatory at least to a collective bargaining agreement had done something that's the contract that being be texas did enter into and and so if b and b texas reaches out and does business in some other place then that provision of section article eight section five of the collective bargaining agreement between b and b texas and local fifty three would come into play but it's not going to come into play when arizona which is a legally independent company just just business somewhere argue about and what it means yes and let me address why that's important we're not addressing not going to arrow because there's a defense of illegality to the unions interpretation of argument not at this point in the proceedings the reason that magen arrow is relevant is this the unions contend that there's jurisdiction over b and b texas by virtue of consent consent in a collective bargaining agreement and therefore the court necessarily is going to have to interpret that collective bargaining agreement to find whether there is consent by the in the taxes and whether it's doing it for purposes of jurisdiction or purposes of deciding a motion to compel arbitration it's still about how similar language needs to be interpreted so we're looking at mangan r o for the purpose of determining what what the parties in fact agreed to what the intent of the parties agreement was and in  that case involved unfair labor practice charges there was a collective bargaining agreement that had substantially identical language to the language that's put before this court in this case and the employer argued that the language was on lawful and a violation of court law and so what the board did was construed the language in that agreement in order to determine whether it would be lawful and the test that the board used was it said you know if the language is clear on its face we have to read the language as it as it exists and decide whether it's lawful if the languages ambiguous we will construe it in a way that makes it lawful and it found the mag in our language to be ambiguous i would submit to the court you know at best the language is it is difficult to discern and ambiguous and so the board interpreted this this megane our language exercise control over the job of another employer that's not enough to to meet the right of control tasks that applies in this case what you have to have is the actual exercise of  in addition in the closets referring to the mangan are a clause and i'm on page one sixty four of mag an error near the end of that page in addition the clause by its terms states that it applies only if the signatory exercises control this is more than potential authority it refers to the actual and active control of the work finally the clause by its terms  limits its objective to work which the contractor performs that's another way of looking at this being be taxes is not performing the work being be texas is not there ok and to draw the inquiry back to the collective bargaining agreement which is really what george walker had to interpret and i think what this court has to review in reviewing the language of section five which is the out of area cla article eight section five of the collective bargaining agreement between b and b texas and local fifty three it talks about the employer party here too so that if it's a collective bargaining agreement doesn't use that language throughout it uses that language in this section it talks about when the employer party here to does work out of area its obligation is triggered ok and and it is that section five that provides the platform for district sixteen to argue that it has a basis to insert itself into the local fifty three collective bargaining agreement because it's the section five that says that a local union on the jobsite can and can't enforce  provision of the collective bargaining agreement that section five and so what that section five really means is that if the employer party here to be in the tax system goes outside texas area in which the local fifty three agreement applies it's going to be subject to that section and it's limited in that regard and me ask you about the wrinkle that comes up with respect to burden of proof basically here is the jurisdiction an arbiter really collapse because of the circumstances of the concerns but he uses a preponderance standard or at least he recites in one point preponderance standard on the jurisdiction that the year that the union presented no evidence that it did the only evidence that the union presented was that it had potential control that is to say there were interlocking sorts of directorate but the at but the undisputed evidence was that nobody who had an ownership interest in texas none of the churchill who was the actual guy who runs the m b texas had nothing to do with his job and so whether the standard is prime a fashion or a preponderance of the evidence the union couldn't have met it because if submitted no evidence after after there had been discovery you know i'd also like to point out if i may the at another important aspect of the magen are was that the board in magen r o found the language to be enforceable as a construed it because it only applied in the geographic area in which the local union to which difference between schadler and mangan our was in shape blur the union try to do exactly what the union is trying to do here is to say that you have let you have an anti duel shop agreement but you're going to apply outside of the area where the union does its work the union that's a party to the agreement doesn't work and shape where the board said that's a violation of section eighty and in mega narrow the board said we don't have a violation of eighty here because the agreement is construed to apply only in the washington d c area which is where the union in which making our own had answered into a collective bargain agreement that it's worth you know in the fact pattern of magen our own magen are was also doing business in massachusetts at the court didn't get the board did not get into that but it's a fact worth pointing out because the board did limit the ante to all shop language to the area in which the union was doing its work and that's consistent with the law interpreted section eighty which says that a clause that would otherwise violate section eighty may be enforceable if the object is to preserve the  work that the union is doing and not to achieve union objectives elsewhere and we would submit that's exactly what is what district sixteen is trying to do here is to achieve union objectives elsewhere local fifty three that entered into this geographic limitation of that local fifty three agreement b and b arizona came into texas to do the work in any of those texas counties subject to the c p a that would be a violation unless they used union labor or less they did you know so so that is another reason why the language of section one can't be interpreted in the way that the union needs in order to to get the case order to  got past that issue whether there would be whether the case should be sent to an arbitrator and let me just make one final point which is that counsel referred to the steelworkers trilogy and your honors are undoubtedly familiar with with tons of law you know saying sending the case join arbitrator in a questionable case i would submit that the union has really skipped over the important analysis all of the cases that really say you know if there's an issue of the scope of the agreement you send it to the arbitrator those cases had had the same fact pattern which is you had a labor union an employer with a collective bargaining agreement and and you're talking about the scope of the agreement we don't have that here and all the cases going back to worry or engulf eighteen t technologies and even the mckinstry case that that is a centerpiece of the union's argument make clear that when it's when you don't have when it's not clear that there was an agreement between parties then the court has to look at that very carefully you don't get the presumption as to whether there's an arbitration agreement you only get that the presumption favoring arbitrary what he wants you have that threshold inquiry so if there are any other questions otherwise i think the question is a consent one of the parties agree that they agree that this reasons could be pursued under the melding the out of area clause and the man this thing about well the texas locals fully protected in texas being the arizona can't come in texas and do work but he ignores the other half of the clause that says that outside of the jurisdiction  proceed and who can enforce it so under the f a a if you apply to this agreement plainly there's jurisdiction in california because being we texas has consented or agreed to allow