Food & Commercial Workers Local 367 (Quality Food Centers)

National Labor Relations Board - Board Decisions

Apr 4, 2001

333 N.L.R.B. 771 (N.L.R.B. 2001)

FOOD & COMMERCIAL WORKERS LOCAL 367 (QUALITY FOOD) 771
United Food and Commercial Workers Union Local
No. 367, Chartered by United Food and Com-
mercial Workers International Union, AFL–
CIO, CLC (Quality Food Centers, Inc.) and
Cinnabon, Inc. Case 19–CC–1950
April 4, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
The issue presented in this case is whether the Re-
spondent Union1 violated Section 8(b)(4)(ii)(B) of the
Act by filing a grievance and demanding arbitration
against Quality Food Centers, Inc. (QFC), with an
unlawful secondary objective of forcing QFC to cease
doing business with Cinnabon, Inc. (Cinnabon). Unlike
our dissenting colleague, we agree with the judge’s
analysis and find that the Respondent’s conduct was di-
rected at a neutral party, QFC, and was tactically calcu-
lated to achieve union objectives vis-à-vis Cinnabon and
outside the Respondent’s contractual relationship with
QFC.2
The Board has considered the exceptions in light of the
record and briefs and has decided to affirm the judge’s
rulings,3 findings,4 and conclusions and to adopt the rec-
ommended Order as modified.5
The facts are fully set forth in the judge’s decision and
briefly summarized here. QFC operates retail grocery
stores in the Seattle, Washington area. In March 1995,
QFC purchased from another grocery retailer the Gig
Harbor store involved in this proceeding. QFC agreed to
apply the terms of the existing collective-bargaining
agreement between the previous owner and the Respon-
dent. QFC and the Respondent thereafter executed a
contract effective from April 30, 1995, to May 3, 1998,
pursuant to which the Respondent represents a bargain-
ing unit of employees at QFC’s two locations (Gig Har-
bor and Northshore) in Pierce County, Washington.6

1 United Food and Commercial Workers Union Local No. 367,
Chartered By United Food and Commercial Workers International
Union, AFL–CIO, CLC (Respondent or Union).
2 On March 11, 1998, Administrative Law Judge Frederick C.
Herzog issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel and QFC each filed an
answering brief, to which the Respondent filed separate reply briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 We grant the General Counsel’s unopposed motion to correct inad-
vertent typographical errors in the judge’s decision.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 363
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
5 We shall modify the judge’s recommended Order to comport with
our decision in Indian Hills Care Center, 321 NLRB 144 (1996).
Cinnabon operates a self-contained retail store within
QFC’s Gig Harbor location pursuant to a sublease (here-
after lease) entered into with QFC in September 1995.
On December 14, 1995, the Respondent filed a grievance
against QFC demanding assurances that the handling of
bakery merchandise will be performed only by bargain-
ing unit employees in the future. The Respondent there-
after sought to arbitrate the grievance. The “bakery mer-
chandise” work sought by the Respondent refers to the
following work currently performed by Cinnabon em-
ployees within the leased space: the preparation, produc-
tion, packaging, and selling of Cinnabon’s proprietary
baked goods, as well as proprietary coffee drinks and
other beverage products. No party disputes the judge’s
finding that the Cinnabon store is a completely separate
entity from QFC.7
We agree with the judge’s conclusion that the Respon-
dent has failed to present a colorable contractual claim to
the work in controversy. The collective-bargaining pro-
vision set forth above implicitly excludes from the bar-
gaining unit concessions not “under the direct control of”
QFC. Indeed, the Respondent concedes in its brief that it
is “correct to conclude that concessions not under QFC’s
direct control are excluded from the bargaining unit by
implication.” And it further conceded at the hearing that
Cinnabon is not under the direct control of QFC. Given
these concessions from the Respondent, we find that the
only reasonable interpretation of the next sentence of the
6 The collective-bargaining agreement provides:

ARTICLE 1—RECOGNITION AND BARGAINING UNIT

1.1 Quality Food Center, d/b/a QFC hereby recognizes United Food
and Commercial Workers Union Local No. 367 as the sole and exclu-
sive Collective Bargaining Agency for a unit consisting of all employ-
ees employed in the Employer’s present and future grocery stores, in-
cluding concessions under the direct control of the Employer party to
this Agreement, located in Pierce County, State of Washington, with
respect to rates of pay, hours, and other conditions of employment ex-
cept and excluding employees whose work is performed within a
meat, culinary, prescription or bakery production department location
of the retail establishment, supervisory employees within the meaning
of the Labor Management Relations Act of 1947 as amended. Subject
to the preceding exclusions and the terms of Section 15.1 of Article
15, all work of handling and selling of merchandise in such retail
stores covered by this Agreement shall be performed only by employ-
ees of the Employer within the unit referred to above for which United
Food and Commercial Workers Union Local No. 367 is recognized as
the sole Collective Bargaining Agency by the Employers.
7 We disavow the judge’s statement, at fn. 11 of his decision, that the
Respondent had made no claim to work performed by other conces-
sionaires of QFC. The record shows that the Respondent’s grievance
also made a claim for the work performed by the Chinese Kitchen
concession in the store.
333 NLRB No. 84
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
contract, which preserves certain work for unit employ-
ees “[s]ubject to the preceding exclusions,” is that the
work performed by Cinnabon employees is excluded,
i.e., because the Cinnabon employees constitute one of
the “preceding exclusions,” any work they perform is
plainly outside the scope of the work preservation
clause.8 Thus, the judge correctly concluded that, be-
cause the Respondent cannot seek to preserve work that
is specifically excluded from the work preservation
clause,9 the contract interpretation sought by the Re-
spondent “would illegally extend the contract to reach
outside the contractual bargaining unit.” Service Employ-
ees Local 32B–32J v. NLRB, 68 F.3d 490, 495 (D.C. Cir.
1995), enfg. in relevant part 313 NLRB 392 (1993) (con-
demning union’s grievance filing as an unfair labor prac-
tice because of this illegal objective).10
We further agree with the judge, for the reasons set
forth by him, that the work in controversy is not fairly
claimable by the Respondent. The record shows that unit
employees, during the entire tenure of the relationship
between QFC and the Respondent at the Pierce County
locations covered by the contract, have never performed
baking duties similar to those performed by Cinnabon
employees. The only exception was for a brief transition
period when QFC purchased the Gig Harbor store. The
judge correctly observed that such a temporary period is
insufficient to establish that the Cinnabon work is fairly
claimable. Id., 68 F.3d at 494. Further, as the judge cor-
rectly highlighted, there is a clear distinction between
unit work and the work in controversy in that unit em-
ployees do not perform actual bake-off duties, as do Cin-
nabon employees.11 The record indeed shows that the
QFC Gig Harbor store is not even equipped with bake-
off ovens outside of the equipment in the leased space
and under the exclusive control and ownership of Cin-
nabon. The work performed by Cinnabon employees is

8 We disagree with our colleague’s contention that our interpretation
of the work preservation clause allows QFC to assign “any and all unit
work” to nonunit employees. Our interpretation of the clause is ad-
dressed to the particular circumstances of this case where, as discussed
infra, there has been no diminution of unit work as a result of QFC’s
concession agreement with Cinnabon and where the work is clearly
different from that performed by unit employees.
9 Any ambiguity in the contractual work preservation language per-
ceived by the dissent is thus irrelevant, because it is only bargaining
unit work that may be preserved. In view of the plain meaning of the
contract provision, extrinsic evidence to be adduced at an arbitral pro-
ceeding is unnecessary.
10 Notwithstanding the dissent’s attempt to distinguish Local 32B-
32J, it clearly supports our finding that the pursuit of such a grievance
can indeed violate Section 8(b)(4) of the Act.
11 Cinnabon is considered to be engaged in a “bake-off” operation
because its employees do not produce bakery products from scratch
dough, but rather “bake off” dough that is shipped to Cinnabon by
another company.
sufficiently different from that of unit employees to pre-
clude a finding that it is fairly claimable.12
To be sure, the Respondent’s work preservation de-
fense must be analyzed in light of the “traditional scope
of the bargaining unit’s work as evidenced by the con-
tractual recognition clause and the history of the parties’
conduct under it.” Newspaper & Mail Deliverers (Hud-
son News), 298 NLRB 564, 566 (1990). Here, however,
the contractual recognition clause excludes from unit
work concessions, such as Cinnabon, not under the direct
control of QFC, and unit employees have never meaning-
fully performed at the QFC Gig Harbor store the type of
work in controversy.
To establish a work preservation defense, a union must
show that the employer had the right to control the as-
signment of the work. Here, however, because the Re-
spondent has failed to show that the work is fairly claim-
able, QFC’s right to control the work is irrelevant. The
right to control test resolves—after the work has been
found to be fairly claimable—whether the union exerted
pressure on the proper (primary) employer.13
In any event, assuming arguendo that it is necessary to
reach the right to control test, we agree with the judge
that it is not satisfied in this case. The record evidence
fully supports the judge’s finding that QFC has no power
or authority, under the terms of the lease, to assign to its
employees the work in controversy. This is not, more-
over, a case in which the employer has improperly sur-
rendered control to avoid its contractual obligations to
the union. QFC has never had the authority to perform
or assign the disputed work involving handling and sell-
ing of Cinnabon’s proprietary products, and thus it had
no control to surrender.14 We emphasize that the parties’
collective-bargaining agreement exempts from the bar-
gaining unit concessions not under QFC’s direct control.
By entering into the lease, QFC has not circumvented in
some manner the collective-bargaining agreement. In-
12 See Retail Wholesale Union Local 324 (Ralph’s Grocery Co.),
235 NLRB 711, 712 (1978) (work performed in self-contained leased
photography specialty shop requiring active and specialized sales and
photographic customer assistance, not fairly claimable where unit em-
ployees merely handled and sold film and flashcubes); Local 282,
Teamsters (Fortunato, Inc.), 197 NLRB 673, 678 (1972) (driving work
performed by unit employees considerably more limited than driving
duties sought and thus not fairly claimable).
13 Service Employees Local 32B–32J, supra, 68 F.3d at 495 fn. 5 (the
right to control doctrine developed in cases where it was undisputed
that the work in question had been traditionally performed by bargain-
ing unit members).
14 On this basis, Pipefitters Local 120 (Mechanical Contractors’
Assn.), 168 NLRB 991, 992 (1967), cited by the dissent, is distinguish-
able. In that case, the employer was given control of the work in issue,
but voluntarily withheld the work from the union. By contrast, in the
instant case, as stated above, QFC never had control over the assign-
ment of the Cinnabon work.
FOOD & COMMERCIAL WORKERS LOCAL 367 (QUALITY FOOD) 773
deed, there is no contention that the contract prohibits
QFC from entering into lease agreements. Accordingly,
in agreement with the judge, we find that examination of
all the circumstances surrounding the Cinnabon work in
controversy establishes that the right to control test has
not been satisfied. NLRB v. Pipefitters, 429 U.S. 507,
524 (1977).15
Finally, the record is devoid of evidence indicating any
diminution of unit work. We agree with the judge in
these circumstances that the Respondent has engaged in
activity not as a shield to preserve unit members’ jobs,
but to reach out to monopolize jobs when their own unit
jobs are not threatened. NLRB v. Longshoremen, 473
U.S. 61, 75–76 (1985); National Woodwork Mfrs. Assn.
v. NLRB, 386 U.S. 612, 630 (1967). The “commonsense
inference” to be drawn from all the record evidence is
that, because QFC has no power to assign the work in
controversy, the Respondent’s grievance-arbitration was
not addressed to the labor relations of the contracting
Employer QFC vis-à-vis its own employees, but was
calculated to satisfy union objectives elsewhere vis-à-vis
Cinnabon.16 NLRB v. Pipefitters, supra, 429 U.S. at 531.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
Food and Commercial Workers Union Local No. 367,
chartered by United Food and Commercial Workers In-
ternational Union, AFL–CIO, CLC, Tacoma, Washing-
ton, its officers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its business office and meeting hall copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 19,

15 “The rationale of the [right to control] test is that if the contracting
employer has no power to assign the work, it is reasonable to infer that
the [union’s conduct] has a secondary objective, that is, to influence
whoever does have such power over the work.” NLRB v. Longshore-
men, 447 U.S. 490, 504–505 (1980). The judge cited various bases,
including, inter alia, credited evidence, to support his finding of an
unlawful secondary objective. The dissent takes issue with some of
these findings. It is not necessary to find that the sole object of the
union’s conduct was secondary in order to find a violation of Sec.
8(b)(4)(ii)(B), however, so long as one of the union’s objectives is to
exert improper influence on secondary or neutral parties. NLRB v.
Pipefitters, supra at 530 fn. 17; Service Employees Local 32B-32J
(Nevins Realty), supra, 313 NLRB at 397.
16 We agree with the judge’s recommended remedy that the Respon-
dent reimburse QFC for all reasonable expenses and legal fees, with
interest, incurred in defending against the grievance-arbitration. Service
Employees v. NLRB, supra, 68 F.3d at 496 (court enforced Board’s
reimbursement remedy for unlawful arbitration).
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members and em-
ployees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.”
2. Substitute the following for paragraph 2(e).
“(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, concurring.
I agree with the majority opinion. However, I wish to
make certain additional points. They are set forth below.
Article I of the contract contains a recognition clause
(first sentence) and an alleged work preservation clause
(second sentence). The recognition clause sets forth the
unit. The unit includes “concessions under the direct
control of the Employer.” The unit thereby implicitly
excludes concessions that are not under the direct control
of the Employer. It is clear, and the dissent concedes,
that Cinnabon is a concession that is not under the direct
control of the Employer. Thus, these employees are ex-
cluded from the unit. The unit also expressly excludes
employees of the Employer in four departments.
The alleged work preservation clause begins with the
word, “subject to the preceding exclusions.” The dissent
says that the phrase “preceding exclusions” refers to the
Employer’s employees in the four departments. I agree
that the phrase can be read that way. However, it does
not follow that the alleged work preservation clause cov-
ers concessions that are not under the direct control of
the Employer. For, as discussed supra, they are not unit
employees, and not even employees of the Employer. In
short, the phrase “subject to the preceding exclusions”
was necessary to make it clear that certain work of em-
ployees of the Employer was excluded from the work
preservation clause. It was not necessary to state the
obvious, i.e., that nonunit work performed by employees
of a different employer, and not controlled by the Em-
ployer, is not preserved by the unit work preservation
clause. The dissent’s reading of the clause is anomalous.
Under that reading, nonunit work performed by employ-
ees of the Employer is not preserved but nonunit work
performed by a different employer (and not even con-
trolled by the Employer) would be preserved.
The dissent quarrels with my statement of the obvious
proposition that the work of the Cinnabon employees is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774
nonunit work. As discussed above, the contract excludes
concessions that are not under the direct control of the
Employer, and the dissent concedes that Cinnabon is
such a concession. Thus, the work is not unit work.
Of course, that does not end the inquiry. Work that is
not unit work, but which is “fairly claimable” by the Un-
ion, can be the lawful subject of a work preservation
clause. I conclude that the Cinnabon work is not fairly
claimable.
In addition, quite apart from my interpretation of the
clause, it is clear, under Section 8(e), that the parties to
an agreement cannot use the agreement to reach out to
capture work that is not fairly claimable work. As the
majority opinion makes clear, the Cinnabon work is not
fairly claimable unit work. It is wholly different from
the bakery work that was once briefly performed by unit
employees.
Further, even if the work was once fairly claimable be-
cause unit employees once performed bakery work, the
Employer lacks control of the Cinnabon work. The dis-
sent claims that the Employer had the power not to enter
into the lease with Cinnabon, and that it had control in
that sense. However, the lease was not attacked as
unlawful, and the Union, in the 1995 contract, agreed
that work that is not under the Employer’s control is not
unit work.
Finally, the dissent says that the Union has a colorable
contractual claim and should be permitted to pursue it.
However, under Section 8(e), if the contractual claim is
for an award that is unlawful under Section 8(e), the
claim is unlawful. That is the situation here. That is, if
the contract is construed as the Union wishes, the result
would be to regulate the work assignment of Cinnabon, a
separate company over whom the Employer has no con-
trol.

MEMBER LIEBMAN, dissenting.
I cannot agree with my colleagues that the Respondent
violated Section 8(b)(4)(ii)(B) of the National Labor Re-
lations Act merely by filing a grievance alleging that the
Employer Quality Food Centers, Inc. violated the work
preservation clause of the parties’ collective-bargaining
agreement. The Respondent is entitled to a ruling by an
arbitrator on its contract claim that nonunit employees
employed by Cinnabon may not handle and sell mer-
chandise at the Employer’s Gig Harbor, Washington,
grocery store. Accordingly, I dissent.
I.
It is undisputed that the contractual work preservation
clause is lawful on its face.1 Nor can it be questioned

1 This case involves a work preservation clause, not an “alleged”
work preservation clause, as my concurring colleague claims. Preser-
that our national labor policy encourages resort to the
grievance-arbitration procedure as the preferred method
of resolving labor-management disputes. Congressional
intent in clearly set forth in Section 203(d) of the Act,
which states:
Final adjustment by a method agreed upon by the par-
ties is hereby declared to be the desirable method for
settlement of grievance disputes arising over the appli-
cation or interpretation of an existing collective-
bargaining agreement.
Citing Section 203(d), the Supreme Court has stated
that Federal labor policy “reflect[s] a decided preference
for private settlement of labor disputes without the inter-
vention of government.” Paperworkers v. Misco, 484
U.S. 29, 37 (1987).
In light of the strong Congressional policy favoring the
private settlement of disputes through the grievance-
arbitration machinery, the Board generally does not de-
clare the mere filing of a contractual grievance to be pro-
hibited by the Act. My colleagues, however, seek to
invoke a limited exception to that general rule. Under
Bill Johnson’s Restaurants2 and its progeny,3 the Board
may find the filing of a grievance to constitute an unfair
labor practice if the union is seeking an illegal interpreta-
tion of the contract. According to my colleagues, the
Union’s grievance did not have the lawful objective of
seeking to preserve bargaining unit work for bargaining
unit members. Rather, the majority holds that by invok-
ing the work preservation clause, the Union was actually
seeking to illegally extend the contract beyond the bar-
gaining unit and acquire work to which the Union had no
legitimate claim. Close examination of the record, how-
ever, reveals that the majority’s analysis suffers from
three fatal flaws. First, the majority erroneously finds
that the work claimed by the Respondent is specifically
excluded from the work preservation clause. My col-
leagues’ second error is their finding that the work in
controversy is not fairly claimable by the Respondent.
The majority’s final faulty finding is that the Employer
lacks the power to assign the work in question to its em-
ployees.
As a result of these three analytical flaws, the majority
condemns the mere filing of a grievance. In reaching
this incongruous result, the majority relies on a section of
the Act (8(b)(4)) that the Supreme Court has cautioned is

vation of unit work for unit employees is “[a]mong the primary pur-
poses protected by the Act.” NLRB v. Longshoremen, 447 U.S. 490,
504 (1980).
2 Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 737 fn. 5
(1983).
3 E.g., Service Employees Local 32B-32J v. NLRB, 68 F.3d 490, 495
(D.C. Cir. 1995).
FOOD & COMMERCIAL WORKERS LOCAL 367 (QUALITY FOOD) 775
to be construed narrowly.4 In effect, the Board today
stands the Act on its head and holds that conduct the
statute broadly protects is outlawed under a narrowly
drawn prohibition against secondary activity.
A.
My colleagues’ first error is their finding that the work
claimed by the Respondent is specifically excluded from
the work preservation clause.5 Article 1, the contract
provision in issue, is set forth in full in the majority’s
opinion and consists of two sentences. The first sentence
defines the bargaining unit as consisting of all employees
employed in the Employer’s grocery stores, “including
concessions under the direct control of the Employer,”
but “excluding employees whose work is performed
within a meat, culinary, prescription, or bakery produc-
tion department location of a retail establishment.” The
second sentence is the work preservation clause and
reads in pertinent part as follows: “Subject to the preced-
ing exclusions . . . all work of handling and selling of
merchandise in such retail stores covered by this Agree-
ment shall be performed only by employees of the Em-
ployer within the unit.”
It is undisputed that the Cinnabon operation is not
“under the direct control of the Employer” and, therefore,
the Cinnabon employees are an implied exclusion from
the bargaining unit defined in the first sentence. Unfor-
tunately, my colleagues leap from that correct premise to
the wholly erroneous conclusion that the Cinnabon em-
ployees necessarily fall within the “subject to the preced-
ing exclusions” clause in the second sentence and are
therefore permitted to perform the unit work of “handling
and selling of merchandise in [the] retail store.”
As the Respondent convincingly argues in its brief, Ar-
ticle 1 is clearly susceptible to another interpretation.
Indeed, I find the Respondent’s interpretation of Article
1 to be logical and reasonable. Under its construction,
the key phrase in the work preservation clause (“subject
to the preceding exclusions”) refers only to the four em-
ployee groups specifically and expressly mentioned in
the preceding sentence (i.e., those performing work
“within a meat, culinary, prescription, or bakery produc-
tion department”); the phrase does not cover the Cin-
nabon employees whose exclusion from the unit is im-
plied, not expressly stated. Under the majority’s reading
of the contract, the “previous exclusions” language
would, in effect, cover all employees excluded from the
unit, whether expressly or by implication. Thus, the Em-

4 See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
Trades Council, 485 U.S. 568 (1988).
5 That work may be fairly defined as the baking, handling, and sell-
ing of Cinnabon products within the leased space at the Gig Harbor
store.
ployer would be permitted to assign any and all unit
work to nonunit employees on the ground that because
such employees are excluded from the unit, they neces-
sarily fall within the “subject to the preceding exclu-
sions” clause. In other words, the majority reads the
work preservation clause not as preserving unit work for
unit members, but as permitting the Employer to assign
unit work to nonunit employees. In short, the majority
transforms a unit work preservation clause into a unit
work obliteration clause.6
By contrast, under the Respondent’s interpretation, Ar-
ticle 1 means that unit work must be assigned to unit
employees or employees working in the four specifically
listed exclusions, namely, “meat, culinary, prescription,
or bakery production department.” Because the Cin-
nabon employees do not fall within one of these four
specifically listed exclusions, the Respondent contends
that the Employer may not permit them to perform the
handling and selling of merchandise in its grocery stores.
In sum, the Respondent’s claim that the Employer vio-
lated the work preservation clause is reasonably based on
the language of the collective-bargaining agreement.
The majority’s finding to the contrary is clearly errone-
ous and affords no valid ground for barring the Respon-
dent from presenting its contract arguments to an arbitra-
tor. The majority needlessly overreaches to outlaw a
mere attempt to test a contract claim.
B.
The second glaring error in my colleagues’ decision is
their finding that by filing its grievance and invoking
article 1 of the contract, the Respondent sought not to
preserve unit work, but to acquire new work. The appli-
cable legal principles are not in dispute. It is well settled
that the Act “does not outlaw . . . conduct which seeks to
preserve for employees in the bargaining unit work
which they have traditionally performed.”7 Nor does the
Act proscribe “conduct aimed at recapturing or reclaim-
ing for unit employees work which they previously per-
formed or which otherwise constitutes ‘fairly claimable’
work.”8 “Fairly claimable” work has been defined as
6 My concurring colleague adds that it is “obvious” that “non-unit
work performed by employees of a different employer, and not con-
trolled by the Employer, is not preserved by the unit work preservation
clause.” The flaw in his approach is that by terming the work per-
formed by the Cinnabon employees “non-unit work,” he has assumed
the very point in issue. What this entire case is about is the Respon-
dent’s claim that the work performed by the nonunit Cinnabon employ-
ees is unit work and is preserved to bargaining unit members by the
work preservation clause. To state that it is “obvious” that the work
performed by the Cinnabon employees is “non-unit work” may be
convenient, but hardly constitutes reasoned analysis.
7 Teamsters Local 282 (D. Fortunato), 197 NLRB 673, 677 (1972).
8 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776
work that is “identical to or very similar to that already
performed by the bargaining unit and that bargaining unit
members have the necessary skill and are otherwise able
to perform.”9 Evaluated by these standards, it is clear
that the Respondent’s grievance had solely a lawful ob-
jective.
First, the “surrounding circumstances” strongly sup-
port the Respondent’s claim of a work preservation ob-
ject.10 Thus, the record shows that in March 1995, when
the Employer purchased the Gig Harbor store, a bakery
department that produced baked goods on premises was
in operation. For several months after the Employer’s
purchase of the store, employees represented by the Re-
spondent performed “bake-off” work for the Employer.
It was during this time period when the unit employees
were performing “bake-off” work that the parties entered
into their collective-bargaining agreement requiring, with
limited exceptions, that “all work of handling and selling
of merchandise” be assigned to unit employees. In this
context, where the union-represented employees were
performing that work at the time this contract language
was agreed to, the Respondent’s claim that the “work of
handling and selling of merchandise” includes the “bake-
off” work is certainly not unreasonable, let alone illegal.
In September 1995, the Employer subleased space
within its Gig Harbor store to Cinnabon for the operation
of a retail store. In December 1995, the Respondent filed
its grievance, claiming that the Employer violated the
collective-bargaining agreement by permitting Cinnabon
employees to handle bakery merchandise in the store.11
In the grievance and subsequent correspondence, the
Respondent emphasized that its sole objective was to
preserve traditional bargaining unit work and not to rep-
resent the Cinnabon employees. For example, in a
March 1996 letter to the Employer’s president, the Re-
spondent’s president stated that “the issue is not the 15
employees that are working within Cinnabon in Gig Har-
bor but rather the contracting out of the work that be-
longs to members of Local 367 who need hours and the
benefits . . . of our contract.” The letter explained the
Respondent’s concern that unless it proceeded to arbitra-
tion with its grievance, unit work would be gradually

9 Newspaper & Mail Deliverers (Hudson News), 298 NLRB 564,
566 (1990). There is no contention that the bargaining unit employees
lack the necessary skill to perform the work claimed by the Respon-
dent.
10 National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612,
644 (1967) (the Board has always analyzed “whether under all the
surrounding circumstances the union’s objective was work preserva-
tion”).
11 The grievance also encompassed work performed by the employ-
ees of “Chinese Kitchen,” another leased operation in the store.
eroded by a series of sublease agreements.12 In sum, the
“surrounding circumstances” here all demonstrate that
the Union’s object was work preservation. They are far
removed from those of Nevins,13 cited by the majority, in
which the union’s grievance claimed work that for 25
years had never been performed by members of the bar-
gaining unit.
Second, although the Employer phased out the “bake-
off” work in 1995, employees represented by the Re-
spondent have at all material times handled and sold
merchandise very similar to that handled and sold by
Cinnabon employees. For example, unit employees cur-
rently ice baked goods, as do Cinnabon employees. In
addition, unit employees handle and sell, from the Em-
ployer’s bakery sales department, cinnamon rolls (two
types), coffee drinks, and beverage products. Similarly,
Cinnabon employees handle and sell cinnamon rolls,
coffee drinks, and other beverage products. The only
distinction between the products unit employees handle
and sell and the products the Cinnabon employees handle
and sell are the brand names, a factor not entitled to de-
terminative weight.14
Third, the work claimed by the Respondent “overlaps
in practice” with what is undisputedly unit work.15 Unit
employees at the checkstands handle and sell Cinnabon
products that have been baked and packaged by Cin-
nabon employees. Indeed, these sales represent 64 per-
cent of the overall sales of Cinnabon products at the Em-
ployer’s store. In my view, it is arbitrary and illogical to
hold, as my colleagues do, that while the unit employees
may legitimately perform 64 percent of the “handling
and selling” of Cinnabon merchandise, the remaining 36
percent may not be fairly claimed by them.
In light of the close connection between the work
claimed by the Respondent and the work traditionally
performed by the bargaining unit, it is clear to me that by
filing its grievance and invoking Article 1 of the contract,
the Respondent sought only to preserve those work op-
portunities that the Respondent had a right to protect for
12 Under Board precedent, the Respondent was not required to wait
until unit work was actually eliminated before filing its grievance; it is
sufficient that the Respondent was reacting to an anticipated threat to
its work jurisdiction. Painters District Council 51 (Manganaro Corp),
321 NLRB 158, 166 fn. 27 (1996).
13 Service Employees Local 32B–32J (Nevins Realty), 313 NLRB
392 (1993), enfd. in pertinent part 68 F.3d 490 (D.C. Cir. 1995).
14 Canada Dry Corp. v. NLRB, 421 F.2d 907, 910 (6th Cir. 1970)
(“We agree with the Board’s finding . . . that it is unrealistic to define
the area of the [unit employees’] legitimate job protection efforts ac-
cording to brand name or supplier.”), affg. 174 NLRB 424 (1969).
15 See Service Employees Local 32B-32J, supra, 68 F.3d at 494–495
fn. 4 (work fairly claimable if it “overlap[s] in practice with bargaining
unit work”).
FOOD & COMMERCIAL WORKERS LOCAL 367 (QUALITY FOOD) 777
bargaining unit employees.16 At a minimum, the Re-
spondent should be permitted to test its claim before an
arbitrator.
C.
My colleagues’ final error is their wooden and me-
chanical application of the right-of-control test of Pipefit-
ters17 under which the union violates Section 8(b)(4)(B)
when it coerces an employer in order to obtain work that
the employer has no power to assign. It is true, as the
majority points out, that the Employer had no power to
assign the work in issue to its employees after it entered
into the sublease with Cinnabon. Under Pipefitters,
however, the Board must analyze “all of the surrounding
circumstances,” including the Employer’s right to control
the work before it entered into the sublease.18 In this
connection, the Respondent argues and the record sup-
ports that the Employer was capable of entering into an
agreement with Cinnabon that would not have violated
the work preservation clause of the collective-bargaining
agreement.19 Specifically, the Employer and Cinnabon
could have entered into a franchise agreement or licens-
ing arrangement that would have permitted the Employer
to prepare and sell Cinnabon products using employees
represented by the Respondent to perform the work.
There is no evidence that Cinnabon insisted on the sub-
lease agreement as a condition precedent to doing busi-
ness with the Employer. Thus, so far as the record
shows, the Employer had the potential for control over
the work in issue, but by its voluntary action, forfeited
that potential. In sum, the “surrounding circumstances”
here justify a finding that the Employer is not a neutral
entitled to be shielded under the right-of-control doctrine

16 In finding that the Union’s grievance activity had a secondary ob-
jective, the judge erroneously relied on the likely effects of the griev-
ance. This aspect of the judge’s decision is contrary to Supreme Court
precedent, and my colleagues wisely distance themselves from it. See,
e.g., NLRB v. Longshoremen ILA, 473 U.S. 61, 76 fn. 16 (1985) (so
long as the right to control test is satisfied, Sec. 8(b)(4)(B) normally not
violated by union activity “for the purpose of preserving work tradi-
tionally performed by union members even though in order to comply
with the union’s demand the employer would have to cease doing busi-
nesses with another employer”).
17 NLRB v. Enterprise Assn. of Steam Pipefitters, 429 U.S. 507, 523
fn. 11 (1977) (Board’s right-of-control analysis “has not [been] nor will
it ever be a mechanical one”).
18 Id. (Board examines “not only the situation the pressured em-
ployer finds himself in but also how he came to be in that situation”).
19 The majority cites the absence of any contention that the contract
prohibits QFC from entering into lease agreements. This is a nonsequi-
tur. The gist of the Union’s grievance is not that the contract broadly
prohibits QFC from entering into all lease agreements, but that QFC
violated the work preservation clause of the collective-bargaining
agreement by entering into the lease agreement permitting the assign-
ment of the work at issue in this proceeding to nonunit employees.
from the Respondent’s efforts to enforce the valid work
preservation clause.20
II.
For all these reasons, I would dismiss the unfair labor
practice complaint and permit the Respondent’s griev-
ance to be considered by an arbitrator in accordance with
the fundamental federal policy favoring the private reso-
lution of labor-management disputes. At a minimum, the
Respondent should be allowed to advance its work pres-
ervation claims before an arbitrator.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

WE WILL NOT seek to enforce or apply, through
grievance or arbitration, any collective-bargaining
agreement we have with Quality Food Centers, Inc.,
where an object thereof is to force or require Quality
Food Centers, Inc. to cease doing business with Cin-
nabon, Inc.
WE WILL withdraw the grievance, and subsequent
demand for arbitration, we filed against Quality Food
Centers, Inc. and WE WILL reimburse Quality Food
Centers, Inc. for all reasonable expenses and legal fees,
with interest, incurred by it in defending against the
grievance and arbitration demand.
FOOD & COMMERCIAL WORKERS
LOCAL 367 (QUALITY FOOD CENTERS)

John Fawley, Esq., for the General Counsel.
Mark E. Brennan, Esq. (Webster Mrak & Blumberg), of Seattle,
Washington, for the Respondent.
Bruce E. Heller, Esq. (Reed McClure) of Seattle, Washington,
for the Charging Party.
David W. Croysdale, Esq. (Michael Best & Friedrich), of Mil-
waukee, Wisconsin, for Quality Food Centers, Inc.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Seattle, Washington, on June 26, 1997,
20 See Pipefitters Local 120 (Mechanical Contractors’ Assn. of
Cleveland), 168 NLRB 991, 992 (1967) (notwithstanding work preser-
vation clause in collective-bargaining agreement, employer “con-
tract[ed] away” performance of bargaining unit work in the absence of
any demand that it do so by the project owner; because loss of control
over assignment of work was the “result of [the employer’s] own con-
duct,” the Board held that the employer was not a neutral).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778
and is based on a charge filed by Cinnabon, Inc. (Cinnabon), on
September 26, 1996, alleging generally that United Food and
Commercial Workers Union Local No. 367, chartered by
United Food and Commercial Workers International Union,
AFL-CIO, CLC (Respondent), committed certain violations of
Section 8(b)(4)(ii)(B) of the National Labor Relations Act (29
U.S.C. §151 et seq.), the Act. On October 23, 1996, the Acting
Regional Director for Region 19 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of hear-
ing alleging violations of Section 8(b)(4)(ii)(B) of the Act.
Respondent thereafter filed a timely answer to the allegations
contained within the complaint, denying all wrongdoing.1
All parties2 appeared at the hearing, and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and file
briefs. Based on the record, my consideration of the briefs filed
by counsel for the General Counsel and Counsel for Respon-
dent, and my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint, as amended, alleges, and Respondent’s an-
swer, as amended at trial, admits that Cinnabon is a Delaware
corporation, with an office and place of business in Gig Harbor,
Washington, where it is engaged in the production and retail
sale of cinnamon rolls and nonalcoholic beverages; that during
the 12 months preceding issuance of the complaint herein, a
representative period, in the course and conduct of its business
operations, it had gross sales of goods and services valued in
excess of $500,000; that during the same 12 months it, in the
course of its business operations, sold and shipped goods or
provided services from its facilities within the State of Wash-
ington to customers outside the State, or sold and shipped
goods, or provided services to customers within the State,
which customers were themselves engaged in interstate com-
merce by other than indirect means, of a total value in excess of
$50,000.
Additionally, the complaint alleges, and Respondent admits,
that QFC is a State of Washington corporation, with offices and
place of business in Gig Harbor, Washington, where it is en-
gaged in the business of the operation of a retail grocery store;

1 Additionally, Respondent asserts that the complaint here is time
barred. However, it is well established that the 10(b) period com-
mences only when the charging party receives clear and unequivocal
notice—actual or constructive—of the unfair labor practice. Nursing
Center of Vineland, 318 NLRB 337, 338 (1995). Thus, I must find this
defense to be without merit, as the Charging Party’s district manager,
McDougall, credibly testified that it had no knowledge of Respondent’s
grievance, which forms the basis for the complaint, until August 1996.
August of course, is the very month preceding the filing of the charge.
Further, I find that Respondent’s action in maintaining it’s grievance
constitutes a continuing violation. Compare, for example, Electrical
Workers IBEW Local 6 (San Francisco Contractors), 318 NLRB 109,
126 (1995). Accordingly, Respondent’s efforts to obtain dismissal of
the charge on this basis is denied.
2 Additionally, Quality Food Centers, Inc. (QFC or the Employer)
appeared at the hearing, and was allowed to fully participate.
that during the 12 months preceding the issuance of the com-
plaint herein, a representative period, QFC, in the course of its
business operations, had gross sales of goods and services val-
ued in excess of $500,000; that during the same period, it sold
and shipped goods or provided services from its facilities
within the State of Washington to customers outside the State,
or sold and shipped goods, or provided services to customers
within the State, which customers were themselves engaged in
interstate commerce by other than indirect means, of a total
value in excess of $50,000; and that, during the same period,
QFC purchased, and caused to be transferred and delivered to
its facilities within the State of Washington, goods and materi-
als valued in excess of $50,000 directly from sources outside
the State, or from suppliers within the State which, in turn,
obtained such goods and materials directly from sources out-
side the State.
Accordingly, I find and conclude that both Cinnabon and
QFC are now, and at all times material herein have been, em-
ployers, engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that Re-
spondent is now, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The complaint alleges Respondent pursued a grievance claim
and an arbitration demand against QFC with the object of forc-
ing QFC to cease doing business with Cinnabon, in violation of
Section 8(b)(4)(ii)(B) of the Act. As its defense, Respondent
asserts a work preservation motive for its conduct.
B. Background and Labor Relations History
QFC is a supermarket chain that operates approximately 90
retail grocery stores in the Seattle/Tacoma metropolitan area.
Respondent represents many grocery employees throughout
Southwest Washington. Most such employees are represented
through agreements it reaches with Allied Employers, Inc., a
management multiemployer bargaining association. QFC,
though operating in the same area, is not a member of Allied,
and is not a party to those agreements between Allied and other
area grocers. However, QFC has historically adopted the Al-
lied contracts without material change or substantive negotia-
tions.
Respondent represents a collective-bargaining unit which, at
all times material, consists of QFC employees employed at
QFC’s two Pierce County stores (Gig Harbor and Northshore)
in the following classifications:

All employees employed in (QFC’s) present and future gro-
cery stores, including concessions under the direct control of
(QFC) . . ., located in Pierce County, . . . Washington, . . . ex-
cept and excluding employees whose work is performed
within a meat, culinary, prescription or bakery production de-
FOOD & COMMERCIAL WORKERS LOCAL 367 (QUALITY FOOD) 779
partment location of the retail establishment, supervisory em-
ployees.3

QFC built the Northshore store from the ground up in 1993.
The Gig Harbor store, however, was purchased from the Hogan
family in March 1995, briefly continued in operation as a Bag-
N-Save grocery store, and converted to a QFC store over the
summer of 1995. The building in which QFC operates the Gig
Harbor store is still owned by the Hogan family. On acquiring
the store from the Hogan family, QFC agreed to apply the
terms of the then existing collective-bargaining agreement be-
tween Respondent and the Allied multiemployer group. Prior to
this acquisition, employees of the Hogan family’s Bag-N Save
had performed a certain amount of production bakery opera-
tions within the store, i.e., producing bakery goods from scratch
dough. Respondent concedes that such operations gradually
ceased, as the bakery became what it terms “a bakeoff depart-
ment.”4
QFC and the Respondent have entered into a series of collec-
tive-bargaining agreements which, for all times material, con-
tain the following work jurisdiction language in section 1.1:

Subject to the preceding exclusions and Section 15.1 of Arti-
cle 15, all work of handling and selling of merchandise in
such retail stores covered by this Agreement [QFC’s Gig
Harbor and Northshore stores] shall be performed only by
employees of the Employer within the unit referred to above.5

Section 15.1 permits nonemployee demonstrators to perform
work not relevant to this proceeding.

However, its most significant “exclusion” is for employees
of concessions not under the direct control of (QFC).

Other “exclusions” are also provides, to wit:

. . . employees whose work is performed within a meat, culi-
nary, prescription or bakery production department location of
the retail establishment, supervisory employees . . .

3 The following classifications, if any, in the Gig Harbor and North-
shore stores were added to the collective-bargaining unit by Addenda:

all Snack Bar, Take-Out Food, and Deli Department employees em-
ployed by (QFC), all Bake-Off/Deli Department employees employed
by (QFC), all Bake-Off Department employees employed by (QFC) . .

The classifications added by Addenda exclude “Meat Department
employees, janitors, professional employees, confidential employees,
office and clerical employees, guards, watchmen and supervisors, . . . .”
4 Insofar as it is argued by Respondent that the small amount of bak-
ery work which continued for about two months while the bakery was
being remodeled is demonstrative that Respondent ever represented
employees of QFC at the Gig Harbor store doing work now fairly
claimable by it, I reject the argument. Mike Huse credibly testified that
the work was temporary and of an emergency nature. See Service
Employees Local 32B–32J v. NLRB, 68 F.3d 490, 494 (D.C. Cir. 1995).
5 Respondent contends that it filed its grievance because QFC vio-
lated this contractual language by letting products be sold by someone
other than its own employees. In sum, Respondent contends that the
language of the contract requires that “all handling and selling“ of
products in the store must be performed by bargaining unit employees,
and that it has merely been engaged in legitimately seeking adherence
to the contract’s terms.
C. The Facts
Cinnabon operates a store within QFC’s Gig Harbor store
pursuant to a sublease with QFC which was entered into in
September 1995. The Cinnabon store is a self-contained struc-
ture occupying approximately 427 square feet with its own
walls, service counter, and exclusive space.6
The Cinnabon store includes baking ovens, bakery racks,
separate lighting, display racks, stools for customer seating, and
counterspace. The only facilities of QFC used by Cinnabon are
some storage space and additional seating for customers to
consume Cinnabon products.
The Cinnabon store is identified by some distinctive signs,
using Cinnabon’s logo and colors. Cinnabon employees are
similarly distinguished by distinctive caps, aprons, and name
tags.
The primary activity within the Cinnabon store is the produc-
tion and sale of “Cinnabon World Famous Cinnamon Rolls.”
In the words of its proud district manager, David McDougall:

Cinnabons are not like most cinnamon rolls. These are made
with the highest-quality ingredients that you can buy in the
world, the best cinnamon, and they’re a handmade product,
baked on the half hour, and very unique, have a very good
flavor and taste. And the one thing that we like to think in
Cinnabon is that, being that it is so unique, it’s an indulgence,
and that’s not just a cinnamon roll, it is a Cinnabon cinnamon
roll.

No other bakery products are sold in the Cinnabon store.
Accordingly, Cinnabon employees do not “handle or sell”
any products controlled by QFC.7
Cinnabon also sells proprietary nonalcoholic beverages in-
cluding Mochalatta Chill, Vareva juices, and Rubymoon Cof-
fee. Sale of nonproprietary products by Cinnabon is negligible.

Cinnabon is proscribed by the sublease from selling:

. . . any additional products which . . . compete directly with a
product then being sold by QFC or one of its other subtenants
to the extent that Cinnabon’s sales of the product can rea-
sonably be expected to have a significant impact on the sales
of the items then being sold by QFC or its subtenant.

Other than nominal sales of nonproprietary products, Cinnabon
does not sell products in its store which are sold by QFC in any
of the departments of QFC’s store.
6 QFC also subleases space within its Gig Harbor store to a bank and
to a Chinese restaurant. They each operate there entirely independently
from QFC.
7 Respondent argues that, by the sublease agreement, QFC “author-
ized“ Cinnabon to prepare and sell cinnamon rolls, together with nu-
merous other products defined in the sublease agreement. I, however,
cannot agree that the terms of the sublease rise to the level of an “au-
thorization,“ in the sense that QFC ever exerted control over the opera-
tions of Cinnabon. Indeed, to the extent that Respondent may be argu-
ing that the terms of the sublease, which proscribes certain terms (such
as the minimum number of hours that Cinnabon shall operate its con-
cession with the QFC store), I find that the sublease language does not
satisfy the “right-to-control“ test needed for it to validly assert a work
preservation defense herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780
“Cinnabon World Famous Cinnamon Rolls” is trademarked
and processes for producing these gourmet rolls are protected
by various proprietary agreements. The parties stipulated that
no one can:
produce, handle, or sell any of the products without the ex-
press permission of Cinnabon . . .

The protected products include:

Mochalatta Chill, Vareva orange juice [and other juices and
drinks listed in Exhibit E to the Sublease], all promotional
material including soda mugs, Rubymoon coffee, Rubymoon
mugs, . . . Cinnabon and Minibon, Makara Cinnabon [rolls]

The recipe for Cinnabon dough is protected through a proprie-
tary agreement with Pillsbury.
The in-store processes of Cinnabon are protected by a “Pro-
prietary Information Agreement” which each Cinnabon store
employee is required to sign as a condition of employment.8
This agreement prohibits any Cinnabon employee from using
any Cinnabon “proprietary information” during or after em-
ployment with Cinnabon.
Cinnabon hires and fires its own employees; determines the
wages, benefits and other terms and conditions of employment
of these employees; conducts specialized training; provides
distinctive cap, apron, and name tags; provides all work direc-
tion and work assignments; and in all other respects maintains
control over its own employees. Conversely, QFC exercises no
management control over Cinnabon employees.

Sublease section 3.9.1 provides:

Employees of QFC are not nor will they be deemed to be em-
ployees of Cinnabon, and employees of Cinnabon are not nor
will they be deemed to be employees of QFC.

There is no interchange between QFC and Cinnabon em-
ployees. Cinnabon employees do not perform work in the QFC
store and QFC employees do not perform work in the Cinnabon
store.
QFC’s employees at the store do not perform bakery produc-
tion or bake-off duties. Instead, they merely handle and sell
baked goods that are produced by bakeries away from QFC’s
grocery store, and which are delivered to the store.
Cinnabon’s employees are not former QFC employees, nor
do Cinnabon employees fill vacancies or openings in the QFC
store. QFC and Cinnabon each operate their stores independent
from the other.
It is undisputed that QFC has not and does not assign work
to Cinnabon employees nor does Cinnabon assign work to QFC
employees. All work performed within the Cinnabon store is
controlled by and assigned by Cinnabon. QFC has no authority
respecting these work assignments.
In addition to sales within its own store, Cinnabon prepares
prepackaged product which is placed on display racks on Cin-
nabon store premises for pickup by customers. This product is
then handled and sold through QFC checkstands by QFC em-
ployees represented by Respondent.

8 It was stipulated that no QFC employee represented by Respondent
is required to sign any similar agreement.
District Manager McDougall credibly testified that approxi-
mately 64 percent of the Cinnabon store sales are sales of pre-
packaged product which is handled and sold through QFC
checkstands. The remaining Cinnabon sales are over the
counter sales within the Cinnabon store of ready-to-eat gourmet
Cinnabon cinnamon rolls and proprietary nonalcoholic bever-
ages.
Cinnabon operates 16 stores at supermarket sites within the
Washington area where the supermarket employees are repre-
sented by a labor organization. None of the Cinnabon employ-
ees are represented by a labor organization, including the em-
ployees at Cinnabon’s Gig Harbor store.
Cinnabon is an independent company producing and selling
“Cinnabon World Famous Cinnamon Rolls” and other proprie-
tary products at Cinnabon stores throughout the United States.
QFC is an independent company operating approximately 90
grocery stores in the northwest Washington area. Neither com-
pany has any financial control of the other.
Cinnabon is solely responsible for determining what prices it
will charge for products sold within its stores, including the one
within QFC’s Gig Harbor grocery.
Both QFC and Cinnabon maintain their own accounting,
payroll, and administrative systems for all operations at the Gig
Harbor store. Neither provides administrative assistance to the
other.
Cinnabon hires and fires its own managers and does not util-
ize any management services from QFC. Likewise, QFC main-
tains a management staff independent from Cinnabon. Neither
provides managerial services to the other. Cinnabon deter-
mines its own prices without any approval or control by QFC.
The only contractual relationship between the parties is the
sublease. There is no other business relationship between Cin-
nabon and QFC except that created by the sublease.
Cinnabon and QFC each has its own employee work force.
There is no interchange between QFC and Cinnabon employ-
ees. Each, as shown above, maintains control over its own
employees.
Respondent claims the work performed by Cinnabon em-
ployees within the Cinnabon store. This work relates to Cin-
nabon’s proprietary gourmet Cinnabon cinnamon rolls and
proprietary nonalcoholic beverages and consists of:

Taking out dough to thaw, rolling the dough out, putting the
dough into the proofer, . . . place those rolls in the oven for
baking, . . . mix frosting . . . remove baked goods from the
oven, . . . frost the baked goods, . . . place them on the display
case for thirty minutes, then . . . package them and box them
up in a box if they’re unsold after - thirty minutes after refrost-
ing them, . . . make coffee drinks and other non-alcoholic
beverages, . . . perform cashier duties and what are termed as
centerfield duties (assisting the cashier in performance of sell-
ing).

It is undisputed that employees represented by Respondent in
stores other than those involved in the instant case regularly
perform work which is quite similar to, or perhaps even identi-
cal to, the work performed in this case by Cinnabon. Beyond
doubt, Respondent represents employees in many locations
FOOD & COMMERCIAL WORKERS LOCAL 367 (QUALITY FOOD) 781
throughout its geographical jurisdiction who bake and ice cin-
namon roles, and other bakery products.
Cinnabon products displayed on racks for customer pickup
are handled and sold through QFC checkstands by QFC em-
ployees represented by Respondent. This work is performed
within the QFC store and is not in dispute.

Union President Ronald Hayes testified:

Q. So your dispute is solely with the work being per-
formed by Cinnabon employees within that leased area
that Cinnabon operates?
A. Yes.
Q. So it’s just—it’s that area, it’s the Cinnabon em-
ployee work we’re talking about?
A. That’s correct.9

Respondent’s only dispute is with the work performed by
Cinnabon employees within the confines of the Cinnabon store.
At no time have Cinnabon and Respondent had a collective-
bargaining relationship.
Respondent filed a grievance against QFC on December 14,
1995, demanding QFC’s “assurances that the handling of Bak-
ery . . . merchandise will be performed only by bargaining unit
employees in the future.” The reference to “Bakery merchan-
dise” is a reference, not to any work performed by QFC em-
ployees, but to Cinnabon’s production and sale of its gourmet
Cinnabon cinnamon rolls in Cinnabon’s Gig Harbor store.
There is no showing that Cinnabon was given notice of the
pendency of this grievance claim.
Respondent sought to arbitrate the grievance. Following cor-
respondence over the summer months of 1996 led to the selec-
tion of an arbitrator and September 24, 1996, was initially se-
lected as the date for arbitration hearing.
However, late in August 1996, Cinnabon representatives
learned for the first time that Respondent claimed work per-
formed by Cinnabon employees within the Cinnabon Gig Har-
bor store. Cinnabon’s legal counsel verified the claim with
QFC’s legal counsel, where Cinnabon made demand on Re-
spondent to drop its grievance claim. When Respondent re-
fused, Cinnabon filed the instant charge.
Sales of baked goods and nonalcoholic beverages have in-
creased at QFC’s store since QFC entered into it’s sublease
with Cinnabon. Since that time, no union-represented em-
ployee has been discharged or laid off because of declining
sales. Prior to the sublease, Cinnabon products were never
produced, handled, or sold within any QFC grocery store.
D. Discussion and Conclusions
Under Section 8(4)(ii)(B) it is an unfair labor practice for a
union to “threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where . . . an
object thereof is: (B) forcing or requiring any person . . . to
cease doing business with any other person.”
On the one hand, the congressional objective is to preserve
the right of unions to bring pressure on offending employers in
primary labor disputes, while on the other hand, also shielding
unoffending employers from pressures in controversies not

9 Tr. 182–183.
their own. NLRB v. Denver Building Trades Council, 341 U.S.
675, 692 (1951).
A violation is established if an unlawful object is shown,
even if there also exists another and lawful object of the union’s
threat and coercion. Id. at 689; Service Employees Local 32B–
32J (Nevins Realty), 313 NLRB 392, 397 (1993).
The proscription is to be “viewed pragmatically and is in-
tended to reach any form of economic pressure of a restraining
or compelling nature.” Longshoremen Local 1291 (Holt
Cargo Systems), 309 NLRB 1283, 1284 (1992).
The proscription has been held to include such pressure as
the filing of a grievance or resort to arbitration, where the ob-
ject of doing so is to coerce a cessation of business. Nevins
Realty, supra,: Holt Cargo, supra; Teamsters Local 25 (Boston
Deliveries), 282 NLRB 910 (1987).
Thus, the initial question is whether or not Respondent, in
filing its grievance alleging a violation of section 1.1 of its
contract with QFC, had an unlawful secondary object because
it, . . . the grievance, . . was designed to acquire new work for
bargaining unit employees represented by it.
In answering this, I first note that, by the terms of the griev-
ance, the disputed work includes the preparation, production,
packaging, and selling of Cinnabon’s proprietary products at
QFC’s store in Gig Harbor. As also noted, this work is and has
been performed solely by Cinnabon’s employees within that
store.
Next, I note that no relationship, contractual or otherwise,
exists, (or ever has), between Respondent and Cinnabon. Nor
was there any dispute of any sort between Respondent and QFC
or Cinnabon until Cinnabon began producing and selling its
products in QFC’s store at Gig Harbor.
Neither is it, nor could it be, even claimed that the contract
between Cinnabon and QFC is a subterfuge by which QFC
evades and avoids any obligation it owes to Respondent, or the
employees which it represents. Beyond dispute, the record, in
my opinion, establishes that there is no commonality in the
management or financial control of QFC and Cinnabon. They
clearly are neither a single employer nor joint employers.
There is simply no evidence to support any conclusion that the
sublease between QFC and Cinnabon was not genuine or made
at arms length. Thus, I find no basis to conclude that QFC is
involved in a “primary” dispute with Respondent.
Yet, by its grievance, Respondent makes claim, under its
contract with QFC, to work being performed solely by Cin-
nabon’s employees, solely within Cinnabon’s Gig Harbor store.
Yet, throughout this procedure, Respondent has refused to
specify what QFC should do to remedy the alleged contractual
violation. At trial, Respondent’s witnesses, Hayes and
McGuiness, while generally denying that Respondent had any
desire to organize Cinnabon’s employees, seemed disingenu-
ous, incredibly so, in their refusal to state just what should or
could be done to resolve the dispute.
I infer that their reluctance flowed from their recognition that
it would not serve their purposes in this proceeding to admit
that Respondent would be satisfied only when either QFC
forced Cinnabon to assign the work of Cinnabon’s employees
to Respondent or QFC ceased doing business with Cinnabon. It
is not enough to coyly disavow an intent to organize Cin-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782
nabon’s employees, or to have QFC cease doing business with
Cinnabon, while, at the same time, maintaining a grievance
which can apparently lead to no other resolution.
Thus, I find and conclude that the requisite “cease doing
business” objective for Respondent’s grievance, and demand
for arbitration, has been established by counsel for the General
Counsel. In turn, this result brings this case squarely with the
ambit of Section 8(b)(4)(ii)(B). For, the foreseeable result of
Respondent’s action is to pressure a neutral employer, QFC, to,
in turn, pressure the primary disputant, Cinnabon, either to
reassign disputed work to Respondent, or to terminate its busi-
ness relationship with Cinnabon.
This result is not without support elsewhere. In February
1996, Respondent’s president, Hayes, wrote QFC a letter, in
which he proposed that the grievance be settled on terms pro-
hibiting departments, leased or otherwise, in newly opened or
purchased stores, from selling or handling merchandise sold at
QFC retail stores per article 1 of the parties Pierce County Gro-
cery agreement. Quite obviously, such a settlement would
require either a reassignment of the disputed work to Respon-
dent’s members, or a cessation of business between QFC and
Cinnabon.
Finally, there is evidence of a cease doing business objective
in a telephone conversation between Respondent’s attorney,
McGuiness, and the attorney for QFC, Croysdale. The conver-
sation, discussing generally what Respondent wanted, occurred
on September 10, 1996. According to Croysdale, after
McGuiness denied any intent or desire to organize or represent
Cinnabon’s employees, Croysdale commented that the only
remedy would be to have QFC terminate Cinnabon’s lease,
since there had been no loss of hours to QFC’s employees.
Croysdale testified credibly that McGuiness replied that, “if
that’s the case, that’s the case. If that’s what happens, that’s
what happens.”10 Based on my credibility resolution, I find and
conclude that McGuiness’ comments to Croysdale buttress
counsel for the General Counsel’s prima facie case that Re-
spondent’s true objective throughout it’s processing of it’s
grievance has been to compel QFC to cease doing business
with Cinnabon.
I so find and conclude.
Accordingly, the next inquiry must be whether or not Re-
spondent has established a valid defense of “work preserva-
tion.”
This is so because a union may defend an action such as this
by showing that, under all the circumstances, its objective was
the preservation of work for bargaining unit employees, and
that the grievance was not tactically calculated to satisfy union
objectives elsewhere. National Woodwork Manufacturers
Assn. v. NLRB, 386 U.S. 612 (1967).
To establish this defense, a union must meet two tests. First,
the union must show that its grievance seeks to preserve work
traditionally performed by it’s unit employees, which is “fairly
claimable” as bargaining unit work. NLRB v. Longshoremen
ILA, 447 U.S. 490 (1980). Second, it must show that QFC had

10 I credit Croysdale’s version of this conversation over that of
McGuiness. McGuiness seemed less than forthcoming in his testi-
mony, to the point of seeming evasive.
the right to control the assignment of the disputed work. NLRB
v. Plumbers Local 638, 429 U.S. 507 (1977).
Here, Respondent correctly points out that employees repre-
sented by it have traditionally done such work as baking, and,
to be fair, all the attendant duties thereto. Yet, it is a fact that
Respondent’s constituent employees have never performed any
such work for Cinnabon. I also regard it as established that the
entry of Cinnabon on the scene at QFC’s Gig Harbor store has
not resulted in any loss of work for Respondent’s constituents.
The record shows that QFC’s sales of baked good and non-
alcoholic beverages have, to the contrary, increased since Cin-
nabon came on the scene. Thus, I regard it as established that
no work traditionally performed by Respondent’s constituents
has been taken over by Cinnabon or its employees. Nor has
any member or employee represented by Respondent ever pro-
duced, handled, or sold Cinnabon products at QFC’s Gig Har-
bor store, prior to or since Cinnabon entered into its sublease
with QFC. Instead, it would appear that Respondent’s griev-
ance seeks to acquire jobs, when the jobs of its members have
not been threatened or harmed. This, of course, is illegal.
NLRB v. Longshoremen ILA, 473 U.S. 61, 75–76 (1985).
I, therefore, find and conclude that Respondent has failed to
establish the first part of the “work preservation” defense.
This conclusion is supported by the fact that in this case I
note that Section 1.1 of the contractual recognition clause be-
tween QFC and Respondent contains language which specifi-
cally excludes work performed by concessions which are not
under the direct control of QFC, as is the case here. Indeed,
Respondent has conceded that this is the case here.
It follows that Respondent cannot be allowed to attempt to
“preserve” work which it has specifically agreed to exclude
from the definition of bargaining unit work.11
Nor has Respondent shown that the work performed by Cin-
nabon’s employees is more than facially similar to that per-
formed by QFC’s employees. In my opinion, the record estab-
lishes that Cinnabon’s employees work on products which they
actually produce on the premises. QFC’s employees, on the
other hand, work on products which are produced elsewhere.
While both may be said to work on “baked goods,” I regard the
difference between those who actually produce such goods and
those who merely move such good around as substantial. If
Respondent had wished otherwise, it should never have agreed
to the definition of the bargaining unit which it did with QFC.
In sum, I regard the record established by Respondent here
as insufficient to establish that the work at issue constituted
work traditionally performed by Respondent’s members.
Regarding the question of the “right to control,” Respondent
argues that QFC does have the right and the power to assign the
work in question to QFC employees represented by Respon-
dent. Its argument is ultimately premised on the basis that:

QFC and Respondent had an extant collective bargaining
agreement prior the time that QFC entered into the sublease
with Cinnabon; and, that agreement required QFC to assign
11 Indeed, Respondent has made no claim to work performed by
other concessionaires of QFC at the Gig Harbor store, such as the bank
or the Chinese restaurant which maintain stores within QFC’s Gig
Harbor store.
FOOD & COMMERCIAL WORKERS LOCAL 367 (QUALITY FOOD) 783
all of its selling and handling work to Respondent’s constitu-
ents.

I disagree with Respondent that such facts require a finding
in its favor.
Instead, I note that the Cinnabon store is a completely sepa-
rate entity from QFC. Respondent has never been entitled to
have its members perform the work done by Cinnabon’s em-
ployees. Only Cinnabon has the legal power to produce and
sell Cinnabon products, or otherwise use its proprietary items
or trademark. As noted earlier herein, the fact that Respon-
dent’s constituent employees perform similar work under con-
tracts with other employers in the area cannot change the con-
tractual rights of Cinnabon to manufacture and sell its own
products in space leased by it, and over which QFC has no right
of control.
Finally, Respondent has consistently claimed that it’s collec-
tive-bargaining agreement with QFC makes its claim to the
work done by Cinnabon’s employees reasonable. I disagree.
For Respondent ignores that the language of the agreement
provides a number of exclusions from the definition of bargain-
ing work. One such exclusion, clearly spelled out, is conces-
sions that are not under the direct control of QFC. As suc-
cinctly stated in Nevins, supra at 399–400, “It is unit work, not
union work, that may be preserved.”
Summarizing, I find and conclude that counsel for the Gen-
eral Counsel has established that Respondent has coerced and
threatened QFC with an object of forcing it to cease doing
business with Cinnabon, and that Respondent has failed to es-
tablish the defense of work preservation or right of control.
Accordingly, I find and conclude that by filing and maintain-
ing it’s grievance against QFC, and by demanding arbitration,
Respondent violated Section 8(b)(4)(ii)(B) of the Act.
CONCLUSIONS OF LAW
1. QFC and Cinnabon are persons and employers engaged in
commerce and in an industry affecting commerce within the
meaning of Section 2(1), (2), (6), and (7) and Section
8(b)(4)(ii)(B) of the Act.
2. Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
3. By resorting to filing a grievance and demanding arbitra-
tion against QFC where an object thereof is to force or require
QFC to cease doing business with Cinnabon, Respondent has
threatened, coerced, and restrained QFC in violation of Section
8(b)(4)(ii)(B) of the Act, which conduct and activity affects
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent violated Section
8(b)(4)(ii)(B) of the Act, I shall recommend that it cease and
desist therefrom, as well as take certain affirmative action de-
signed to effectuate the purposes of the Act. Respondent shall
be required to withdraw the grievance and arbitration demand
giving rise to this case and reimburse QFC for all reasonable
expenses and legal fees, with interest, incurred in defending
against them, see Rite Aid Corp., 305 NLRB 832, 835 fn. 10
(1991). Interest shall be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
In light of the fact that there has been no claim that Respon-
dent is a recidivist violator, I shall provide for a narrow order.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, United Food and Commercial Workers Un-
ion Local No. 367, chartered by United Food and Commercial
Workers International Union, AFL-CIO, CLC, its officers,
agents, and representatives, shall
1. Cease and desist from seeking to enforce or apply,
through grievance or arbitration, any collective agreement with
Quality Food Centers, Inc., a person engaged in commerce or in
an industry affecting commerce, where an object thereof is to
force or require Quality Food Centers, Inc. to cease doing busi-
ness with Cinnabon, Inc.
2. Take the following affirmative action necessary to effec-
tuate the policies of he Act.
(a) Withdraw the grievance filed on or about December 14,
1995, and the subsequent demand for arbitration.
(b) Reimburse Quality Food Centers, Inc. for all reasonable
expenses and legal fees, with interest, incurred in defending
against the grievance and arbitration demand.
(c) Post at its business office copies of the attached notice,
marked “Appendix.”13 Copies of the notice, on forms provided
by the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(d) Furnish the Regional Director for Region 19 signed cop-
ies of such notice for posting by Quality Food Centers, Inc., if
willing, at its premises.
(e) Notify the Regional Director in writing within 20 days
from the date of the Order what steps the Respondent has taken
to comply.

12 All outstanding motions, if any, inconsistent with the terms of this
Order are overruled. If no exceptions are filed as provided by Sec.
102.46 of the Board’s Rules and Regulations, the findings, conclusions,
and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”