FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DISTRICT COUNCIL NO. 16 OF THE 

No. 05-16258 INTERNATIONAL UNION OF PAINTERS

& ALLIED D.C. No. TRADES, GLAZIERS,

ARCHITECTURAL METAL & GLASS CV-04-01219-VRW

WORKERS, LOCAL 1621,  ORDER

Plaintiff-Appellant, AMENDING

v. OPINION AND

AMENDED B & B GLASS, INC., OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, District Judge, Presiding

Argued and Submitted

June 13, 2007—San Francisco, California

Filed August 16, 2007

Amended December 11, 2007

Before: Mary M. Schroeder, William C. Canby, Jr. and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Schroeder

16261
COUNSEL

David A. Rosenfeld and Emily P. Rich, Weinberg, Roger &

Rosenfeld, Alameda, California, for the plaintiff-appellant. 

Charles S. Birenbuam, Joan B. Tucker Fife, and Robert Spagat, Winston & Strawn, LLP, San Francisco, California, for

the defendant-appellee. 

ORDER

The opinion filed on August 16, 2007 is hereby amended

as follows. On page 9950, the first full paragraph is deleted

and the following paragraph is substituted: 

Section 8(e) of the NLRA “generally prohibits those

collective-bargaining agreements which require employers to

cease doing business with any other person.” Manganaro, 321

N.L.R.B. at 163. The Supreme Court has held that certain

agreements between employers and labor organizations whose

aim is to preserve the jobs of covered employees are not

within the prohibitions of § 8(e). Nat’l Woodwork Mf’rs Ass’n

v. NLRB, 386 U.S. 612, 646 (1967). Only where a work preservation provision is “ ‘tactically calculated’ ” to further

union objectives other than preservation of bargaining unit

16264 DISTRICT COUNCIL NO. 16 v. B & B GLASS
work is § 8(e) violated. NLRB v. Int’l Longshoremen’s Ass’n

AFL-CIO, 447 U.S. 490, 504-05 (1980) (quoting Nat’l Woodwork, 386 U.S. at 644) (provisions designed to achieve objectives other than preservation of bargaining unit work

constitute “secondary” activity and, therefore, are unlawful).

On page 9952, in the first paragraph, the following language is deleted: 

Because the only employees covered by the Texas CBA are

members of Local 53, the district court determined that only

the employees of Local 53 are protected by the clause. 

Substitute the following language: 

Because the only employees covered by the Texas CBA are

employees represented by Local 53, the district court determined that only employees represented by Local 53 are protected by the clause. 

The mandate shall issue forthwith. No petitions shall be

entertained. 

OPINION

SCHROEDER, Circuit Judge: 

This construction industry labor litigation involves the

interplay between the use of standard “work preservation” and

“out-of-area” clauses in collective bargaining agreements and

the strong federal policy favoring arbitration. The clauses at

issue in this litigation appear in a collective bargaining agreement signed by a Texas corporation, but a different company

in California performed the challenged work. The California

union seeking arbitration did not sign an agreement with the

company doing the work. We conclude, as did the district

DISTRICT COUNCIL NO. 16 v. B & B GLASS 16265
court, that because the plaintiff union has no agreement with

the employer that it seeks to take to arbitration, and it cannot

show that the employer against whom it filed its claim controls the company doing the work in California, the employer

is entitled to judgment. We therefore affirm.

Background

Plaintiff-Appellant is District Council No. 16 of the International Union of Painters and Allied Trades, Glaziers, Architectural Metal and Glass Workers, Local 1621 (“Local 1621”

or the “union”). It is located in Northern California and is signatory to a collective bargaining agreement (“CBA”) with

contractors in Santa Clara County. The union filed this action

in the Northern District of California in 2004 against

Defendant-Appellee B&B Glass, Inc., a Texas corporation

(“BBTX”). The union seeks to compel BBTX to arbitrate the

union’s claim that another corporation, B&B Glass, Incorporated, an Arizona company (“BBAZ”), violated the Texas

agreement BBTX signed with Local 1621’s Texas counterpart, Painters and Glaziers Local Union No. 53 (“Local 53”).

The California dispute concerned work BBAZ was doing at

San Jose State University in Santa Clara County. 

BBTX appeared specially to contest the district court’s personal jurisdiction over it, asserting that it was not doing the

work in California and therefore was not present in the state.

In support of its assertion, BBTX provided declarations that

the persons controlling BBTX had no control over BBAZ’s

business decisions. Without producing additional evidence,

Local 1621 countered that, because BBTX and BBAZ had a

majority of shareholders in common, BBTX exercised sufficient management control over BBAZ that the court should

compel arbitration of the dispute between Local 1621 and

BBTX. 

In granting BBTX’s motion to dismiss, the district court

relied on the following undisputed facts. BBAZ was formed

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in 1973 as an Arizona corporation by Robert and Barbara

Buckholz. Their son, Bryan Buckholz, purchased the company in 1983. He now owns a 25% interest in BBAZ, with the

other 75% being owned by Rick Churchill, Bernie Hagerman,

and John Collier, equally. BBAZ conducts most of its business in Arizona, with some in California, Utah and New Mexico. It does not hire employees who are unionized. Bryan

Buckholz incorporated BBTX under the laws of Texas in

1998, and he subsequently sold his entire interest in BBTX to

Rick Churchill, Bernie Hagerman, and John Collier. BBTX is

a union shop. 

BBAZ and BBTX do not compete for projects, contracts,

subcontracts or bids. The companies do not share business

offices, phone numbers, mailing addresses, business licenses,

employees, supervisors, managers, payrolls, workers compensation policies, tax identification numbers, state unemployment numbers, tax records, corporate records or bank

accounts. Importantly, each company has a different “Operation Manager”—the person responsible for bidding on and

negotiating work contracts for the company. 

In March 2002, Rick Churchill, the Operation Manager of

BBTX, signed the Texas CBA. In July 2002, Plaintiff Local

1621 entered into a CBA with various employers in fourteen

Northern California counties, including Santa Clara County,

in which San Jose State University is located. BBAZ began

its work at San Jose State in July 2003. 

In March 2004, this dispute arose between BBTX and

Local 1621. Local 1621 claimed that BBAZ’s work in California violated the Texas CBA. The terms of the Texas CBA,

if applicable to the California work, would bind BBAZ,

through BBTX, to adhere to the terms of the California CBA.

The California CBA provides that any dispute between the

parties is to be resolved through a grievance procedure, the

final step of which is binding arbitration. On March 26, 2004,

Local 1621 filed its petition to compel arbitration with BBTX

DISTRICT COUNCIL NO. 16 v. B & B GLASS 16267
in the Northern District of California. Local 1621 contends

that the California CBA applies to BBAZ’s California work

through the Texas CBA, because BBTX’s three owners also

own a majority of shares of BBAZ. Therefore, Local 1621

contends, BBAZ’s work is the out-of-area work of BBTX. 

The out-of-area clause in the Texas CBA requires BBTX,

when engaged in work outside the area covered by the agreement, to abide by the terms of the agreement in effect in that

other area. It states the employer must 

comply with all the lawful clauses of the Collective

Bargaining Agreement in effect in said other geographic jurisdiction and executed by the employers

of the industry and affiliated Local Unions in that

jurisdiction[.] This provision is enforceable by the

Local Union or District Council in whose jurisdiction the work is being performed, both through the

procedure for settlement of grievances set forth in its

applicable Collective Bargaining Agreement and

through the courts, and is also enforceable by the

Union party to this agreement[.] 

Local 1621 first argued to the district court that this clause

required BBAZ to comply with the California CBA. The district court properly rejected this argument. As the district

court pointed out, “If BBTX physically engages in work outside of the Dallas metropolitan area (i.e., in San Jose, California), BBTX must comply with all of the clauses of the CBA

in effect in San Jose . . . . [¶] But BBTX engaged in no work

at San Jose State; only BBAZ did so.” Therefore, the district

court determined that the out-of-area clause was not sufficient

to support compelling arbitration. 

Local 1621 then invoked the Texas CBA’s “Manganaro”

clause. A Manganaro clause, also known as a work preservation provision, is common practice in the construction industry. Painters & Allied Trades Dist. Council No. 51 of the Int’l

16268 DISTRICT COUNCIL NO. 16 v. B & B GLASS
Brotherhood of Painters and Allied Trades, AFL-CIO, 321

N.L.R.B. 158, 158 (1996) (“Manganaro”). It is designed to

prevent union contractors from acting directly or indirectly as

non-union contractors. The Texas CBA’s Manganaro clause

reads: 

To protect and preserve, for the employees covered

by this Agreement, all work they [i.e., Union 53

members] have performed, and to prevent any device

or subterfuge to avoid protection and preservation of

such work, it is agreed as follows: If the Employer

performs on-site construction work . . . under its own

name or the name of another corporation . . . where

in the Employer, through its officers, directors, owners or stockholders, exercises directly or indirectly

. . . [m]anagement control or majority ownership, the

terms and conditions of this Agreement shall be

applicable to all such work. 

Local 1621 argued that the Texas CBA bound BBAZ to the

terms of the California CBA because BBTX consented to the

jurisdiction of the district court when it signed the collective

bargaining agreement with Texas Local 53. Local 1621 contended that BBTX “exercised . . . majority ownership” of, and

thus controlled, BBAZ’s business decisions. Because of the

Manganaro clause in the Texas CBA, BBAZ was bound by

the Texas CBA. Therefore, Local 1621 contended, because

BBAZ’s work at San Jose State constituted “on-site construction work . . . under the name of another corporation” controlled by BBTX, the out-of-area clause in the Texas CBA

covered BBAZ’s work in California, subjecting it to the California CBA’s arbitration provision. 

On June 1, 2005, the district court granted BBTX’s motion

to dismiss the petition to compel arbitration, finding that the

court lacked personal jurisdiction over BBTX. Applying Manganaro, the court held that BBTX was not present in San

Jose; it had successfully demonstrated that it did not exercise

DISTRICT COUNCIL NO. 16 v. B & B GLASS 16269
active control over BBAZ. See Manganaro, 321 N.L.R.B. at

164 (requiring that the signatory to one CBA must exercise

“actual or active control of the work” of the non-signatory for

work preservation provision to apply). The district court

found that, although Local 1621 initially presented evidence

of the substantial overlap of ownership between the companies, the union did not follow up with additional evidence

demonstrating that BBTX had any hand in BBAZ’s business

decisions. Nor did Local 1621 contradict the companies’

showing that different individuals controlled the management

of each company. 

This timely appeal followed.

Discussion

Local 1621 contends that the district court improperly held

that it was required to establish by a preponderance of the evidence the existence of personal jurisdiction. It asserts that it

was required only to make a prima facie showing, and that it

did so by virtue of its allegations, in the Petition to Compel

Arbitration, that the three owners of BBTX owned a majority

of BBAZ, thus giving rise to a presumption that BBTX controlled BBAZ’s work. 

[1] Where, as here, the existence of personal jurisdiction is

challenged and the defendant appears specially to contest its

presence in the jurisdiction, the plaintiff has the burden to

come forward with some evidence to establish jurisdiction.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800

(9th Cir. 2004) (“where a defendant moves to dismiss . . . for

lack of personal jurisdiction, the plaintiff bears the burden of

demonstrating that jurisdiction is appropriate.”). Because the

district court ruled on the issue relying only on affidavits and

discovery materials without holding an evidentiary hearing,

“dismissal is appropriate only if the plaintiff has not made a

prima facie showing of personal jurisdiction.” Am. Tel. & Tel.

Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th

16270 DISTRICT COUNCIL NO. 16 v. B & B GLASS
Cir. 1996) (internal quotation marks omitted). However,

Local 1621 came forward with no evidence that BBTX exercised any control over the work BBAZ was doing in California so as to bring BBTX within the jurisdiction of a California

court. The district court properly held that Local 1621 had not

borne its burden. 

Local 1621, however, argues that the district court’s dismissal was improper. It claims that BBTX consented to jurisdiction in California because it is a party to the Texas CBA

and the CBA applies to BBAZ’s work in California. If the

union were correct, the Texas CBA would require that BBAZ

adhere to the CBA in effect in Santa Clara County between

Local 1621 and various Northern California companies. The

out-of-area clause in the Texas CBA does not apply on its

face to work done by a company other than BBTX. The union

urges, however, that the out-of-area clause, when read in conjunction with the work preservation clause, brings BBAZ’s

California work within the Texas CBA, because the CBA

covers the out-of-area work not only of BBTX but of entities

over which BBTX “exercises Management Control, or majority ownership[.]” To demonstrate the requisite control, Local

1621 relied only on the common ownership of BBTX and

BBAZ. The district court found this overlap of ownership was

not sufficient in the face of the evidence in the record. We

agree. 

[2] The Texas CBA binds the “Employer party” to “comply

with all lawful clauses of” any CBA in effect in any other

“geographic jurisdiction” in which it does work. Out-of-area

clauses such as the one at issue here are enforceable in the

Ninth Circuit. See McKinstry Co. v. Sheet Metal Workers’

Int’l Ass’n, Local Union No. 16, 859 F.2d 1382, 1389 (9th

Cir. 1988) (approving out-of-area clause because such clauses

are common in construction industry and were contemplated

by the drafters of § 8(e) of the NLRA). As the district court

observed, had BBTX been doing the California work, it certainly would have been required to “comply with all of the

DISTRICT COUNCIL NO. 16 v. B & B GLASS 16271
clauses of the CBA in effect in San Jose between San Jose

employers and the affiliated local union, (e.g. Local 1621).”

But BBTX did not do the work in California. Therefore, the

out-of-area clause in the Texas CBA is insufficient, in and of

itself, to establish personal jurisdiction over BBAZ. 

[3] The out-of-area clause also fails to establish jurisdiction

when read in tandem with the work preservation clause. The

work preservation, or Manganaro, clause is prevalent in construction industry CBAs. The clause takes its name from the

NLRB case that first analyzed an agreement clause containing

materially the same language used in the Texas CBA here.

See 321 N.L.R.B. 158 (1996). 

[4] In Manganaro, a proposed CBA between Manganaro

Corporation and a local union contained a work preservation

clause identical in all material aspects to the clause in the

Texas CBA. Manganaro filed an unfair labor practice claim,

charging that the clause violated, inter alia, § 8(e) of the

NLRA. Id. at 159. The NLRB found the clause “not unlawful

on its face[,]” id. at 163-68, and also held that application of

the clause was “not triggered merely by the fact of an affiliation, subsidiary and parent relationship, or ownership interest

short of majority ownership,” id. at 164-65. It went on to

interpret “majority ownership” as applying only where the

shareholders of the signatory through the non-signatory company, “perform[ ] and exercise[ ] control over the work” in

question. Id. at 165 (emphasis omitted). 

[5] Local 1621 urges that BBAZ’s work in California presents “exactly the scenario” the language the Board approved

in Manganaro was designed to prevent. It contends BBTX is

effectively subcontracting work to BBAZ in order to circumvent the strictures of the Texas CBA. But, as the district court

found, this case does not present the scenario the Manganaro

language sought to prevent. Local 1621 presented the district

court with no evidence that BBTX exercises any control over

BBAZ’s decisions. Indeed, undermining Local 1621’s argu16272 DISTRICT COUNCIL NO. 16 v. B & B GLASS
ment, BBTX offered significant evidence that there is no

overlap between the management and operations of the two

companies. The companies do not operate in the same market

and they do not bid on the same projects. They do not share

offices, employees, records, or any other business nexus.

They are not managed by the same individuals. Because Local

1621 failed to present any evidence of actual control, the district court properly determined that application of the Texas

CBA’s work preservation clause to BBAZ’s California work

would have a secondary effect unlawful under § 8(e) of the

NLRA. 

[6] Section 8(e) of the NLRA “generally prohibits those

collective-bargaining agreements which require employers to

cease doing business with any other person.” Manganaro, 321

N.L.R.B. at 163. The Supreme Court has held that certain

agreements between employers and labor organizations whose

aim is to preserve the jobs of covered employees are not

within the prohibitions of § 8(e). Nat’l Woodwork Mf’rs Ass’n

v. NLRB, 386 U.S. 612, 646 (1967). Only where a work preservation provision is “ ‘tactically calculated’ ” to further

union objectives other than preservation of bargaining unit

work is § 8(e) violated. NLRB v. Int’l Longshoremen’s Ass’n

AFL-CIO, 447 U.S. 490, 504-05 (1980) (quoting Nat’l Woodwork, 386 U.S. st 644) (provisions designed to achieve objectives other than preservation of bargaining unit work

constitute “secondary” activity and, therefore, are unlawful).

[7] The Court in International Longshoremen’s Association

went on to articulate a two-part test for determining whether

a CBA provision constitutes a lawful work preservation

agreement. First, it said, the clause “must have as its objective

the preservation of work traditionally performed by employees represented by the union. Second, the contracting

employer must have the power to give the employees the

work in question.” Id. at 504. This test is known as the “right

of control” test. Id. The Court’s rationale for adopting the second prong of the test was to prevent “contracting employer[s]

DISTRICT COUNCIL NO. 16 v. B & B GLASS 16273
[with] no power to assign [or control] the work” from

attempting to “influence whoever does have such power over

the work.” Id. at 504-5 (citing NLRB v. Pipefitters, 429 U.S.

507, 517 (1977)). 

[8] In Manganaro, the NLRB laid out its assessment of the

minimum evidence necessary to meet the “right of control”

test. It said that, in order to establish the right of control, and

thus shelter a work preservation clause from § 8(e)’s prohibitions, the signatory company must both possess “the right of

control over the work in question . . . and exercise[ ] [that]

control.” Id. at 164-65. The Board rejected the Manganaro

Corporation’s argument that the clause in that case could not

pass the “right of control” test because on its face “it could

and would apply to separate, though commonly owned, companies over which [Manganaro] ha[d] no power to assign

work.” Id. at 164. The NLRB said: 

the requirement that the signatory contractor exercise

“management, control or majority ownership” over

another entity presumptively means the contractor

has the right or the power to control the assignment

of work of that entity’s employees. In addition, the

clause by its terms states that it applies only if the

signatory “exercises” such control. This is more than

potential authority; it refers to the actual or active

control of the work. 

Id. at 164. 

In this case, the district court began its analysis of the work

preservation clause in the Texas CBA by determining that the

clause applies only when BBTX is doing work under the

name of another company in the Dallas metropolitan area.

The provision states that its purpose is to “protect and preserve, for the employees covered by [the Texas CBA], all

work they have performed.” Because the only employees covered by the Texas CBA are employees represented by Local

16274 DISTRICT COUNCIL NO. 16 v. B & B GLASS
53, the district court determined that only employees represented by Local 53 are protected by the clause. Furthermore,

the district court said, disputes regarding the work preservation clause are governed by Section 2 of Article XVIII of the

Texas CBA. That provision states that “[a]ll charges of violations of Section 1 of this Article shall be considered a dispute

and shall be processed in accordance with the provisions of

this Agreement on the handling of grievances.” Hence, the

district court concluded that “any disputes concerning § 1 are

governed by the grievance procedures of the Texas CBA, not

a foreign CBA.” 

On appeal, Local 1621 contends, as it must, that the Texas

CBA’s work preservation clause does apply extraterritorially

and that BBTX is violating it in California by virtue of the

work BBAZ is doing. The essence of this argument is that the

degree of common ownership between BBTX and BBAZ satisfies the “right of control” test laid down by the Supreme

Court. Here, however, the union runs up against the Manganaro decision itself, in which the majority clearly rejected that

view. 

[9] Manganaro is settled law. The NLRB itself recently

described it as “current Board law.” In re Cent. Pa. Reg’l

Council of Carpenters of the United Brotherhood of Carpenters and Joiners of Am., AFL-CIO, 337 N.L.R.B. 1030, 1031

n.1 (2002). Our sister circuits have cited it as well and have

not had occasion to criticize it. See NLRB v. Cent. Pa. Reg’l

Council of Carpenters, 352 F.3d 831, 835 n.1 (3d Cir. 2003);

Int’l Union of Painters & Allied Trades, Local Unions No.

970 & 1144 AFL-CIO-CLC v. NLRB, 309 F.3d 1, 6 (D.C. Cir.

2002). The district court correctly determined that in order to

carry its burden of showing that BBTX was subject to the

court’s jurisdiction, Local 1621 was required to demonstrate

that BBTX exercised actual management control over the

work being done by BBAZ. Local 1621 failed to meet that

burden. 

AFFIRMED.

DISTRICT COUNCIL NO. 16 v. B & B GLASS 16275