Nestle Purina Petcare Co.

National Labor Relations Board - Board Decisions

Aug 16, 2006

347 N.L.R.B. 891 (N.L.R.B. 2006)

NESTLE PURINA PETCARE CO.
347 NLRB No. 91
891
Nestle Purina Petcare Company and District Union
271, United Food & Commercial Workers,
CLC.1 Case 17–CA–22997
August 16, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 23, 2005, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
adopt the judge’s rulings, findings,2 and conclusions as
further discussed below and to adopt the recommended
Order as modified.
I. INTRODUCTION
The single issue presented in this proceeding is
whether Nestle Purina Petcare Company (the Respon-
dent) violated Section 8(a)(5) and (1) of the Act by refus-
ing the Union’s request for access to its Crete, Nebraska
warehouse to conduct a time and motion study of the
work performed by bargaining-unit forklift drivers who
had complained to the Union of a work overload. The
judge found the violation under Holyoke Water Power
Co, 273 NLRB 1369, 1370 (1985), enfd. 778 F.2d 49
(1st Cir. 1985), cert. denied 477 U.S. 905 (1986). We
affirm.
II. THE HOLYOKE TEST
In Holyoke, the leading case on the issue of a bargain-
ing representative’s right of access to an employer’s
property, the Board concluded that a union is not entitled
to access merely because the information it seeks through
access is relevant to the union’s proper performance of
its representational duties. The Board explained that
determining whether an employer must permit access to
its facility requires a balancing of the employer’s prop-

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005. We shall hereafter refer to District
Union 271 as the Union.
2 The Respondent has effectively excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
erty rights against the employees’ right to responsible
representation. As the Board further explained:
Where it is found that responsible representation of
employees can be achieved only by the union’s having
access to the employer’s premises, the employer’s
property rights must yield to the extent necessary to
achieve this end. However, the access ordered must be
limited to reasonable periods so that the union can ful-
fill its representation duties without unwarranted inter-
ruption of the employer’s operations. On the other
hand, where it is found that a union can effectively rep-
resent employees through some alternate means other
than by entering on the employer’s premises, the em-
ployer’s property rights will predominate, and the un-
ion may properly be denied access.
Holyoke, supra, 273 NLRB at 1370. In subsequent deci-
sions, the Board clarified that, although it is the General
Counsel’s burden to establish the relevance of the informa-
tion sought by the union, it is the employer’s burden to
show that there are alternate means other than access that
would satisfy the union’s need. See, e.g., New Surfside
Nursing Home, 322 NLRB 531, 535 (1996) (employer’s
burden to establish those factors which would support a
conclusion that its property right is paramount to the union’s
right of reasonable access); Exxon Chemical Co., 307
NLRB 1254, 1255 (1992) (finding that the witnesses’ testi-
mony failed to establish that employer’s records would pro-
vide a sufficient basis for evaluating employees’ work and
concluding that “nothing in the record shows that the Union
could obtain the complex data that an expert could collect
on the basis of observing employees at work in the plant”);
American National Can Co., 293 NLRB 901, 905 (1989),
enfd. 924 F.2d 518 (4th Cir. 1991).
III. THE PRESENT CASE
We agree with the judge’s finding, as fully set forth in
his decision, that in this instance responsible representa-
tion of employees can be achieved only by the Union’s
having access to the Respondent’s premises. The judge
therefore properly found that the Respondent unlawfully
denied the Union access to its Crete facility to conduct a
time and motion study (time study) of the warehouse
forklift drivers. In affirming the judge’s finding, we em-
phasize: (1) that the time study was plainly relevant to
the Union’s proper representation of the forklift drivers
on the work-overload issue; and (2) that the Respondent
failed to carry its burden of showing that there were al-
ternate means by which the Union could effectively rep-
resent the employees on this issue. Finally, we agree
with the judge that the Respondent’s reliance on Brown
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD892
Shoe Co. v. NLRB, 33 F.3d 1019 (8th Cir. 1994), is mis-
placed, because its facts are distinguishable.
A. The Union Sought Plainly Relevant Information
The Union’s request for a time study had its genesis in
the Respondent’s decision in mid-2002 to designate the
Crete facility a “mixing” center. As a mixing center, the
Crete facility became responsible for shipping products
made at several of the Respondent’s other facilities, in
addition to those made at Crete. There is little dispute
that this change increased the workload of the warehouse
forklift drivers.3 Further, there is no dispute that the
forklift drivers, many of whom were older workers with
seniority, complained to the Union that they were being
overloaded with work.
The Union responded to the forklift drivers’ com-
plaints in two ways. First, in collective-bargaining nego-
tiations in late 2002, the Union demanded a pay upgrade
for the forklift drivers. As part of the demand, the Union
proposed to have its expert conduct a time study to but-
tress its position that the forklift drivers’ workload war-
ranted higher pay.4 On February 1, 2003, the parties
reached a new collective-bargaining agreement that did
not contain a pay upgrade for the warehouse forklift
drivers. No time study had been done, but the Union
continued to request access for its expert to conduct such
a study.
Second, on July 3, 2003, the Union filed a grievance
claiming that the forklift drivers were laboring under a
“work overload” and that all affected employees be made
whole. The grievance requested a time study to validate
this claim.5 At a subsequent labor-management meeting,
the Union further explained that it wanted to conduct the
time study because, if the warehouse forklift drivers were
overloaded with work, then it might pose a safety con-
cern.

3 For example, the Respondent initially set a goal for warehouse
forklift drivers of loading three trucks per work shift. The Respondent
then increased the goal to four trucks per shift, and acknowledged that
the goal may be further increased to five or six trucks per shift. Simi-
larly, the Respondent increased the rate at which its packaging ma-
chines dropped pallets to be picked up by the forklift drivers from every
75–85 seconds to every 50 seconds. As the Respondent’s plant man-
ager, Greg Hiser, testified, “the speed at which [customers] are asking
us to modify what we are able to provide them is continuously increas-
ing.”
4 The Union’s expert, industrial engineer John Sittig, explained that
he would perform the time study by using a stopwatch to time each
component task of the drivers’ job. Based on that data, he could then
determine the drivers’ pace of work and whether the drivers were work-
ing in excess of 100 percent efficiency, which would constitute a work
overload. Sittig testified that, in a situation like this one, on-site, visual
inspection is the only method to measure the pace of work.
5 The Respondent denied the grievance, which was pending arbitra-
tion at the time of the hearing before the judge.
In these circumstances, there is no question that the
time study sought by the Union was relevant to its ability
to represent the warehouse forklift drivers. As a general
matter, a union is presumptively entitled to information
concerning the workload of bargaining-unit employees.
See Beverly Health & Rehabilitation Services, 328
NLRB 959, 961 (1999). The time study directly con-
cerned the forklift drivers’ workload and, therefore, was
presumptively relevant. The same presumption of rele-
vance applies to the extent that the Union was also trying
to determine whether the drivers’ workload raised a
safety concern. See Washington Beef, Inc., 328 NLRB
612, 619 (1999).
The relevance of the time study is further demon-
strated by its connection to the Union’s pending griev-
ance. It is well established that information that enables
a union to intelligently evaluate contractual grievances,
and to determine whether to proceed to arbitration, is
relevant and necessary to the union’s performance of its
representational duties. NLRB v. Acme Industrial Co.,
385 U.S. 432, 437–438 (1967); American National Can
Co., 293 NLRB 901, 904–905 (1989), enfd. 924 F.2d
518 (4th Cir. 1991). Here, the evidence shows that the
Union requested the time study to assist it in processing
its grievance, which, as found by the judge, seeks to up-
grade the forklift drivers’ pay or to adjust their duties so
that they are compatible with their existing pay grade.
We concur with the judge’s observation that “a high
probability exists that the proposed time study will pro-
duce significant information that would aid the Union to
intelligently evaluate the merits of its July 3 grievance
before proceeding to arbitration.” The time study was
therefore relevant for this reason, as well.
The Respondent argues that the Union’s grievance
cannot support the relevance of the time study because
the grievance does not present an arbitrable claim under
the parties’ collective-bargaining agreement. The Re-
spondent points out that the parties discussed the forklift
drivers’ appropriate pay grade during their negotiations
in late 2002 and early 2003, and that the Union ulti-
mately accepted the new agreement without an enhance-
ment to the drivers’ pay. Based on those facts, the Re-
spondent concludes that the Union is foreclosed from
asserting in its grievance that the drivers’ jobs are mis-
graded under the parties’ contract.
The Respondent’s argument lacks merit for several
reasons. Primarily, the Respondent’s argument boils
down to a contention that the Union is not entitled to
conduct the time study because its grievance lacks merit.
It is settled, however, that in assessing the relevance of
requested grievance-related information, the Board does
not pass on the merits of the grievance. See NLRB v.
NESTLE PURINA PETCARE CO. 893
Acme Industrial Co., supra, 385 U.S. at 437; Island
Creek Coal Co., 292 NLRB 480, 487 (1989), enfd. mem.
899 F.2d 1222 (6th Cir. 1990). Rather, the Board deter-
mines only whether the sought-after information is rele-
vant, under a discovery-type standard, to an arguable
contract claim. See Bell Telephone Laboratories, 317
NLRB 802, 803 (1995), enfd. mem. 107 F.3d 862 (3d
Cir. 1997).
The Union has presented an arguable contract claim
here. Union President Donna McDonald testified that
the Union’s grievance is based on article II, section 11 of
the parties’ collective-bargaining agreement, which pro-
vides, among other things, that when “a current job
changes substantially . . . the Company shall fix such job
or jobs in the proper pay grade; and if there is disagree-
ment as to the proper pay grade, such disagreement shall
be subject to grievance and arbitration.” As described
above, the Union’s grievance seeks either to upgrade the
forklift drivers’ pay or to adjust their duties in light of
their existing pay grade.
There is no merit to the Respondent’s claim that the
parties dispositively resolved the classification dispute
during their 2002–2003 contract negotiations. The judge
expressly found that the Union withdrew its proposal to
upgrade the forklift drivers because the Respondent
agreed to permit a time study by the Union. Thus, we
find that the Union’s grievance asserts at least an argu-
able claim under the contract. No more is required to
conclude that the grievance is sufficient to support the
relevance of the requested time study.6
B. The Respondent Failed To Establish
Alternate Means
As stated above, a union is not entitled to access to an
employer’s premises simply because the information it
seeks through that access is relevant to the union’s per-
formance of its representational duties. An employer
may deny access if it establishes that the “union can ef-
fectively represent employees through some alternate
means other than by entering on the employer’s prem-
ises.” Holyoke, supra, 273 NLRB at 1370; see also New
Surfside Nursing Home, supra, 322 NLRB at 535. The
Respondent failed to carry that burden.

6 Whether the Union’s grievance actually has merit will be left to the
judgment of an arbitrator. See Consolidation Coal Co., 307 NLRB
1055 fn. 1 (1992).
Chairman Battista agrees that data concerning the work of unit em-
ployees is presumptively relevant. However, it does not necessarily
follow that access to the plant is presumptively required. The Chair-
man does not pass on that issue here. The General Counsel has shown
that Union access to the plant can yield relevant information concerning
the pace of the work and its impact on the unit employee and that such
information is relevant to the grievance. Thus, the General Counsel in
the instant case does not need the benefit of a presumption.
Here, the Union’s concern was the warehouse forklift
drivers’ increasing workload. The drivers complained to
Union President McDonald that they would be “nit-
picked and dogged” about keeping pace “until they either
quit or g[o]t out.” The Union’s industrial engineer, Sit-
tig, testified that a time study would focus precisely on
the forklift drivers’ pace of work, and would reveal
whether the drivers were working in excess of 100 per-
cent efficiency.
The Respondent contends that the Union may effec-
tively represent the drivers on this issue by requesting
information on the forklift drivers’ pace of work, as well
as information about the drivers’ work output and pro-
duction, disciplinary records, forklift speed, and safety
records.7 The Respondent, however, has not shown that
it actually has any data regarding the forklift drivers’
pace of work. The Respondent’s warehouse manager,
Eddie Furby, testified that the Respondent had never had
an industrial engineer study the forklift drivers’ jobs.
Further, the Respondent has not shown how the other
information it says the Union might request could be
used to determine whether forklift drivers are working in
excess of 100 percent efficiency. In short, there is no
evidence that the Respondent’s proposed alternative to a
time study would enable the Union to effectively analyze
and address the forklift drivers’ concerns. See Exxon
Chemical Co., 307 NLRB at 1255 (records in possession
of employer could not provide data union sought to col-
lect by observing employees at work in the plant); see
also American National Can Co., supra, 293 NLRB at
905.
We therefore find, in agreement with the judge, that
the Respondent failed to establish that the Union could
responsibly represent the warehouse forklift drivers on
the work-overload issue through alternate means. Con-
sequently, the Respondent has not established that its
property rights should take precedence over the Union’s
right of reasonable access.
The lack of available alternatives to union access dis-
tinguishes this case from Brown Shoe Co. v. NLRB, 33
F.3d 1019 (8th Cir. 1994), denying enf. to 312 NLRB
285 (1993), upon which the Respondent heavily relies.
In that case, the 8th Circuit reversed a Board decision
that the employer unlawfully denied union access to its
facility to conduct a time study relevant to a grievance
over the effect of new production machines on the em-
ployees’ piece-rate wages.
Contrary to the Board, the court found that the union
could responsibly represent the employees on the piece-

7 The Respondent never offered to provide the Union with any of
this data as a substitute for a time study.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD894
rate issue without access to perform a time study. Spe-
cifically, the court observed: that the union had resolved
numerous piece-rate grievances without time studies; that
the employer had provided the union with information
about employees’ earnings, the number of items pro-
duced, and the wage rate attributable to that production;
that the union could have sought production-rate data
from the manufacturer of the new machines; that the un-
ion admitted that time studies performed at the em-
ployer’s other plants might be available; and that the
parties’ contract actually provided for a joint labor-
management investigation when new machinery ad-
versely impacted employees’ earnings, but the union had
never requested such an investigation. Brown Shoe, su-
pra, 33 F.3d at 1023–1024. Finally, given that the em-
ployer at the outset had expressed concern that its “op-
erations could be seriously disrupted” by a time study,
the court emphasized that it was “disturbed” by the un-
ion’s refusal to offer the assurances that the presence of a
time-study engineer would not be disruptive. Id. at 1024.
Here, in contrast, there is no evidence that the Union
had previously resolved similar work-overload griev-
ances without a time study. Although the Respondent,
like the employer in Brown Shoe, apparently was willing
to provide the Union with certain data, the Respondent
failed to establish that the data would have enabled the
Union to adequately assess the claimed work overload.
Moreover, while the union in Brown Shoe might have
been able to obtain relevant rate-of-work data from the
machine manufacturer or from time studies conducted at
the employer’s other plants, the Respondent did not show
that the Union had similar, alternative sources of infor-
mation on the forklift drivers’ pace of work. Further,
unlike the situation in Brown Shoe, the parties’ contract
does not expressly provide for a joint investigation.8
Last, even though the Respondent never asserted any
concerns that a time study would disrupt its operations,
the Union nevertheless offered to have Sittig jointly con-
duct the time study with the Respondent’s own expert.
As the judge found, this offer provided “substantial reas-
surance that the testing would be conducted in a profes-
sional manner and with as little interference in ordinary
warehouse operations as possible.” For these reasons,
we find that the present case is distinguishable from
Brown Shoe.

8 It is noteworthy that the Respondent continues to dispute the
judge’s finding that, in the negotiations leading to that contract, it orally
agreed to permit a time study in exchange for the Union’s withdrawal
of its pay-upgrade proposal. The Respondent has repeatedly rebuffed
the Union’s attempts to invoke this oral agreement.
IV. CONCLUSION
For the foregoing reasons, we find that the Respondent
violated Section 8(a)(5) and (1) of the Act by denying the
Union access to its Crete, Nebraska facility to conduct a
time study of the warehouse forklift drivers represented
by the Union. In keeping with the Board’s accommoda-
tion policy set forth in Holyoke, supra, the Union’s ac-
cess shall be limited to reasonable periods and at reason-
able times “consistent with the times least likely to dis-
rupt Respondent’s operations.” Hercules Inc., 281
NLRB 961 (1986), enfd. 833 F.2d 426 (2d Cir. 1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Nestle
Purina Petcare Company, Crete, Nebraska, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a):
“(a) Refusing to bargain in good faith with District Un-
ion 271, United Food & Commercial Workers, CLC as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit, by denying
the Union’s request for access to the Respondent’s Crete,
Nebraska, warehouse for the purpose of having an expert
selected by the Union conduct a time and motion study
of the warehouse forklift drivers:
All production and maintenance employees, including
regular part-time employees employed at Respondent’s
Crete, Nebraska facilities, excluding non-working su-
pervisors, salesmen or office personnel, temporary em-
ployees or any employees being trained for sales or ex-
ecutive positions.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
NESTLE PURINA PETCARE CO. 895
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain in good faith with Dis-
trict Union 271, United Food & Commercial Workers,
CLC, as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit,
by denying the Union’s request for access to our Crete,
Nebraska warehouse for the purpose of having an expert
selected by the Union conduct a time and motion study
of the warehouse forklift drivers:
All production and maintenance employees, including
regular part-time employees employed at our Crete,
Nebraska facilities, excluding non-working supervi-
sors, salesmen or office personnel, temporary employ-
ees or any employees being trained for sales or execu-
tive positions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL promptly grant access to our Crete, Nebraska
warehouses at reasonable times and for reasonable peri-
ods sufficient for an expert designated by the Union to
conduct a time and motion study of the warehouse fork-
lift drivers.
NESTLE PURINA PETCARE CO.
Michael Werner, Esq., for the General Counsel.
Bernard J. Bobber, Esq. (Foley & Lardner LLP), of Milwau-
kee, Wisconsin, for the Respondent.
Emily M. Yeretsky, Esq. (Blake & Uhlig, P.A.), of Kansas City,
Kansas, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. The issue
presented here is whether Nestle Purina Petcare Company (Re-
spondent or Company) violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act), by refusing to grant a
union expert access to its Crete, Nebraska facility for the pur-
pose of conducting time and motion studies of its warehouse
forklift drivers.
District Union 271, United Food & Commercial Workers,
AFL–CIO–CLC (the Union) filed the underlying charge on
January 3, 2005. The Regional Director for Region 17 of the
National Labor Relations Board (the Board) issued a complaint
and notice of hearing on March 28, 2005. The complaint al-
leges that the Respondent refused three union requests for ac-
cess to its Crete warehouse in order to conduct a time and mo-
tion study as a part of its investigation of a grievance that
claimed the Company overloaded its forklift operators with
work. Respondent filed a timely answer denying that it en-
gaged in the unfair labor practices alleged and interposing three
“alternative defenses.” In the first and second, Respondent
avers that the Union had alternate means of representing em-
ployees other than access to its property and that it failed to
pursue those alternate means. And third, Respondent claims
that the Union failed to bargain in good faith regarding the
information it sought.
I conducted the hearing in this case at Crete on June 23,
2005. Having now considered the entire record, including my
assessment of the witnesses’ credibility based on their de-
meanor, and after considering the briefs filed by the General
Counsel, the Respondent, and the Union, I conclude Respon-
dent violated the Act as alleged based on the following1
FINDINGS OF FACT
I. JURISDICTION
During the 2004 calendar year, the Company, a corporation
with an office and place of business at Crete where it engages
in the manufacture and distribution of pet food, purchased and
received goods at its Crete facility valued in excess of $50,000
directly from locations outside the State of Nebraska. During
the same period, the Company also sold and shipped goods
valued in excess of $50,000 from its Crete plant directly to
locations outside the State of Nebraska. Based on these opera-
tions, I find that the Company meets the Board’s nonretail ju-
risdictional standard and that it would effectuate the purposes
of the Act for the Board to exercise its jurisdiction to resolve
this dispute.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Facts
The Company produces and ships canned and packaged
“wet” pet food from its Crete facility. For most of the time
relevant to this case, Greg Hiser served as the Crete plant man-
ager with overall responsibility for operations there. Edward
Furby served as the warehouse manager overseeing the work
directly at issue. Since at least 1980, the Union has represented
the Crete production, maintenance, and warehouse employees.
Currently the unit consists of about 250 employees, including
about 50 warehouse forklift drivers whose work gives rise to
this dispute. The most recent collective-bargaining agreement
(CBA) became effective on February 1, 2003, and expires at
midnight, February 1, 2008, if not renewed.
Respondent has a manufacturing facility and two warehouses
at Crete. A tunnel connects the main warehouse, a 96,000-
square-foot facility with 14 loading docks, and the manufactur-
ing plant. A dual conveyor system transports cases of pet food
manufactured at the plant through the tunnel to two palletizing
machines, known as the “920 Alvey” and the “922 Alvey,” in
the main warehouse. The Alveys arrange cases of pet food on
slip-sheet (48” by 56” cardboard sheets) pallets, wraps the pal-
let, and deposits it on the warehouse floor. The other ware-

1 I do not credit testimony inconsistent with my findings. Generally,
I have based my credibility resolutions on the factors discussed by
Judge Medina in U.S. v. Foster, 9 F.R.D. 367, 388–390 (1949). Certain
specific credibility determinations have been noted below. Objections
that appear in the transcript without any apparent ruling and any pend-
ing motions inconsistent with my findings are overruled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD896
house, referred to as the Boswell Distribution Center, is located
a few blocks away. Both warehouses operate three shifts.
The warehouse forklifts, all battery powered vehicles, have
been modified to accommodate Company’s specialized uses.
Thus, they have been outfitted with wide steel platinum forks,
instead of the typical narrow forks, and pincers that grip the
edge of the slip sheet pallet to pull it aboard and push it off.
The forklifts have been programmed by the manufacturer for a
maximum speed of 7- to 9-miles-per-hour. Other standard
forklift equipment includes a scanning gun and a computer for
use in recording the product loaded.
Warehouse forklift drivers, known as “line pullers,” transport
the pallets of product from the Alveys to a designated ware-
house location. This staging process requires the line pullers to
exercise care in stacking pallets evenly so that “loaders” can
later grip the slip sheet while performing their work. Based on
a loading sheet provided by the shipping clerk, the loaders re-
trieve the palletized product and stack it into semitrailers for
shipment to customers. In the process, they scan the bar code
on each pallet which records, among other things, the time the
loader picked it off the staging stack. At the other end, loaders
scan a bar tag at the loading dock door to insure that they
unload that particular pallet on the proper truck. After finishing
the loading product by the loading sheet, the loader returns to
the shipping clerk for another loading sheet. The loaders also
unload and stage product shipped from sister plants for ship-
ment from Crete. Each loader also maintains a daily loading
log (provided by the shipping clerk) designed for recording the
work they perform throughout their shift.2
Nestle purchased the Purina company in mid-2002. Shortly
thereafter, the Nestle management designated the Crete ware-
house as the Company’s main distribution, or mixing center.
As such, the Company ships products made at Crete as well as
other plants from the Crete warehouses.
Several significant changes occurred when Crete became a
mixing center. First, the Company changed the software pro-
gram on the warehouse forklifts from the RMS system to the
WMS system in order to be compatible with its other ware-
houses. Second, for competitive reasons, the Company began
filling orders that called for less than a full pallet of product.
This change required loaders to manually disassemble and re-
build pallets previously prepared by the Alveys. Third, up-
grades to the packaging machinery located in the manufactur-
ing plant reduced the Alveys’ pallet drops from about 75 to 85
seconds to approximately 50 seconds, thereby significantly
increasing the line-puller’s workload.3 Fourth, the daily in-
bound and outbound truckloads increased from 40 to 60 to
approximately 95 due to Crete’s role as a mixing center.
The changeover to the WMS software proved to be more
than a minor matter. All drivers received a 4-hour training
course on the use of the new program. When the Company

2 Some evidence suggests that a few employees have forklift driving
duties in areas other than the warehouse. Only the warehouse drivers
are directly involved in this dispute.
3 The use of the slip-sheet pallet, apparently a tricky device for driv-
ers to master, appears to have come into use along with the Alveys and,
therefore, not a change made in connection with the conversion of the
Crete warehouse’s to a mixing center.
commenced using the new software, 21 drivers experienced
with its use at sister plants provided hands-on assistance to the
Crete warehouse drivers. Three or four stayed for another
week, and a few returned at intervals to deal with specific is-
sues the Crete drivers encountered with the WMS program.
Some drivers believe the WMS program is an improvement;
others describe it essentially as a time-consuming hindrance.
The increased speed of the upgraded packaging machines
presented other challenges, particularly for the line pullers.
Because of the increased frequency of the pallet drops, the line
pullers must transport and properly position a loaded pallet
much more quickly to its storage site and return in time for the
next pallet drop. As a result, the drivers themselves established
an informal rule giving the line pullers the right-of-way in the
warehouse at all times. Even so, loaders must lend assistance
on occasion so the line pullers can keep abreast of the output.
The mixed pallet orders created a different time-consuming
problem that required the assignment of a loader or two each
day to the task of tearing apart the wrapped pallets to build a
new pallet by hand containing the mixed cases of product or-
dered by a customer. After building a new pallet, the driver
wraps it and stages it for loading later. Usually, first shift driv-
ers build the mixed pallets and the second shift drivers load
them for shipment.
The Company hired several new forklift drivers to meet the
added demands resulting from the increase in both outbound
and inbound loads. Even this recruitment program produced
turmoil. Most of the new hires lacked experience driving a
forklift and required substantial training. On occasion, supervi-
sion assigned an experienced driver to follow a new driver for
on-the-job training. Several of the new employees gave up
after they concluded that they lacked the skills required for the
position. The rest went through a learning-curve period before
becoming fully productive. Through this period several drivers
worked as many as 12 to 16 hours per day, 6 or 7 days per
week in order to meet the increased demands.
Initially, the warehouse supervisors set a goal for the loaders
to load three trucks per 8-hour shift. Later, the supervisors
increased that goal to four trucks per shift after most drivers
acquired the skill and familiarity with the system to load that
many trucks during their shift. The warehouse manager sug-
gested that the goal may be increased to five or even six in the
future if most drivers demonstrate the ability to reach output at
that level. Although the Company eschews any suggestion that
it established a standard for the warehouse drivers, shift super-
visors typically conduct individual conferences in the ware-
house office with loaders who fail to meet the current goal for 3
or 4 consecutive days in an effort to learn the reasons for failing
to meet the goal and to help the loader toward that end. In
preparation for this discussion, the supervisor usually reviews
the driver’s daily loading log for the assignment of ancillary
duties and the computerized activity log to determine if the
loader has extensive time gaps when pulling pallets. Ordinar-
ily, the warehouse management expects a loader to pull a new
pallet every 8 to 10 minutes in order to meet the current loading
goal.
By September 2002, after the Crete warehouses largely com-
pleted the mixing center changeover, Union President Donna
NESTLE PURINA PETCARE CO. 897
McDonald began receiving telephone calls from the warehouse
forklift drivers complaining about the impact of the changes
and the excessive number of hours the Company required them
to work. These complaints prompted McDonald to telephone
Gwen Herzog, the Company’s human resources representative
at the time, seeking a meeting to discuss these problems.
Herzog requested that they take those matters up during nego-
tiations for a new contract about to begin in a few months.
McDonald went along.
The first negotiation session occurred on December 17. Dur-
ing this session, the bargaining committees essentially ex-
changed and reviewed their initial proposals.4 Union proposal
73 sought to upgrade 13 job categories including the warehouse
loaders and line pullers.5 The current collective-bargaining
agreement (CBA) contains 10 pay levels. It classes all forklift
operators at pay level two, one step above the lowest pay level.
Proposal 73 did not specify the pay level upgrades but Rick
Skillett later requested the warehouse forklift drivers be up-
graded to pay level four during subsequent grievance meetings.
The parties agreed to postpone discussions about the union
proposal 73 until they dealt with economic terms.
The parties reached the economic subjects toward the end of
January. During discussions about upgrading the warehouse
forklift drivers, they talked about the changes that had occurred
and the increased complexity of those positions after the con-
version of the Crete warehouses to a mixing center. Cooper
told the union committee that he did not oppose a time study
for those positions but he warned that it could result in jobs
being downgraded. McDonald responded by saying, according
to the Company’s notes, “Those are the rules of the game.”
Plainly, her remark implicitly acknowledges a practice that
typically includes the use of time and motion studies for deter-
mining pay grade levels.
Later, on January 29 negotiating session, McDonald offered
to withdraw union proposal 73 if the Company would permit
John Sittig, the Union’s expert,6 to conduct time and motion
studies of the warehouse forklift drivers. Although this discus-
sion occurred in the context of the Union’s upgrade proposal,

4 McDonald headed the Union’s committee. Others included Union
Vice President Rick Skillett, Business Agent Linda Lee, Chief Steward
Jerry Degenhardt, Third-Shift Steward Matt Summers, maintenance
worker Ray Hollman, a maintenance worker, and second-shift em-
ployee Shelly Vyhnalek. Ken Cooper, a corporate manager, headed the
Company’s committee. Others with him included Herzog; Stacy Ol-
son, Herzog’s successor, Maintenance Superintendent Harry Pulliman,
and Safety Supervisor Jim Heitman. Plant Manager Steve Shultz at-
tended some, but not all, sessions.
5 Union proposal 76 sought to change the job title for the loaders. It
appears to have been treated as an adjunct to union proposal 73.
6 Sittig, currently the director of the UFCW International Union’s
engineering department, has worked for the UFCW as an industrial
engineer since 1981. Although not a licensed engineer, Sittig received
training at Ohio State University relating to time studies and on-the-job
training pertaining to that subject at the industrial engineering depart-
ment of the John Morrell Company in Sioux Falls, South Dakota.
Since his UFCW appointment in 1981, he conducted numerous time
studies at plants from coast-to-coast. He belongs to the Institute of
Industrial Engineers and served on the board of its Society of Engineer-
ing Management Systems.
McDonald credibly asserted that the Union wanted its own time
study so it could seek job modifications to make the warehouse
positions fit within its current pay level should the Company
refuse to upgrade the pay level. She claims Cooper assented to
the Union’s offer to withdraw proposal 73 in exchange for a
time study by Sittig. The Company disputes that any such deal
occurred.7 Regardless, the union members ratified the new
agreement on February 1.
The new CBA contains various provisions pertinent to this
dispute. Thus, article IX, section 3, provides for access to the
Company’s premises by union agents for the purpose of trans-
acting union business during working hours so long as the visit-
ing agents do not take anyone off their job without permission
by a Company official, or otherwise disturb the orderly work
flow. The CBA also requires the union agent to notify man-
agement prior to entering the facility and upon departure.
McDonald, the union president for the past 6 years, estimates
that she visits the plant premises about 12 times a year, and
Lee, the business agent assigned to service this unit, visits the
facility once or twice a week. Ordinarily, visiting union offi-
cials do not seek access to working areas. Instead, they meet
with employees during their breaks in the lunch room. How-
ever, no union representative has ever visited the premises for
the purpose of conducting a time study or any other type of
technical information-gathering study.
In addition, when the Company creates or bids a new job,
substantially changes a current job, or adds a new department,
article II, section 11, requires the Company to “fix such job or
jobs in the proper grade.” This provision provides for the reso-
lution of any grade determination disputes under the CBA’s
grievance-arbitration system.
The CBA’s management’s rights clause (an unnumbered sec-
tion preceding article I) specifically provides that, unless oth-
erwise limited by the CBA, the Company retains, among other
things, the right to “make and enforce reasonable plant rules
and regulations, . . . determine and enforce reasonable standards
of production, . . . determine the type and quantity of machines
and equipment, . . . [and] introduce new or improved produc-
tion methods, machines or equipment. . . .”
Finally, CBA article IV, section 5 requires the Company to
provide “reasonably safe” working conditions and “to give
consideration to suggestions from the Union or individual em-
ployees concerning safety devices or procedures.”
After discussing the forklift driver problem with Sittig,
McDonald requested that he time study the warehouse forklift
drivers.8 According to Sittig, a time and motion study seeks to

7 Stacy Olson, the only Company official present at the negotiations
who testified, denied that the Company made a commitment that would
permit Sittig’s testing. She also identified an incomplete set of Com-
pany bargaining notes prepared by her predecessor which contains no
information about the disposition of union proposal 73. Because of
Olson’s secondary role during the negotiations, and as McDonald ex-
hibited a more detailed recollection concerning the disposition of union
proposal 73, I find the latter’s account more reliable and credible.
8 McDonald explained that the Crete work force generally has “high
seniority.” This caused the Union to harbor a concern about the physi-
cal ability of the forklift drivers to keep up with increased daily work
demands imposed by the Company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD898
determine if the job requirements that the employer has estab-
lished for a particular position amounts to a “fair work re-
quirement . . . [for] the members of our union.” By contrast, an
industrial engineer’s “job evaluation” seeks to determine if the
labor rate “is correct for the job in question.” When requested
to do a time study, Sittig (in accord with professional standards)
uses a stopwatch to time an operator while performing the re-
quirements of the position. If the position consists of repetitive
elements, the study would not likely require the tester to time
the employee throughout an entire shift. In the process, the
engineer “pace rates” the worker, i.e., makes a judgment based
on expert knowledge and experience of the task being per-
formed as to whether the worker exceeds, or fails to meet, a
“normal” pace. By contrast, for a job evaluation, an engineer
such as Sittig uses the employer’s own system and makes an
independent determination as to whether the labor rate is cor-
rect after a period of observation.
A month or so after ratification McDonald telephoned Stacy
Olson to arrange for Sittig’s time and motion study of the fork-
lift drivers. Olson responded that she wanted to discuss the
matter with Greg Hiser who became the Crete plant manager in
March and had not been involved in the negotiations.9 Having
heard nothing further, McDonald e-mailed Olson on May 23 to
report that Sittig would be “in Crete on May 28th to do a time
study on the ‘slip sheet loader and unloader’ position.” In re-
sponse, Olson advised that the Company would not permit
Sittig in the warehouse until Hiser, the new plant manager,
discussed the subject with McDonald at the semiannual joint
labor/management meeting scheduled for June.
At the June joint meeting, McDonald reiterated the Union’s
request to have Sittig to time study the warehouse forklift driv-
ers to determine “if there was truly a workoverload.” When
Hiser pressed McDonald to explain the Union’s “rationale” for
wanting a time study, McDonald responded that several work-
ers complained about the added burdens resulting from the job
changes and the increased complexity of the system so the Un-
ion needed to “check out it out.” Miser told McDonald that he
would get back to her after he investigated the system.
Two or 3 weeks after the joint meeting, McDonald called Ol-
son to ask about Hiser’s investigation. Olson reported that
Hiser had not yet completed his study and that she would get
back to McDonald later.10
On July 3, Union Steward David Kraus filed a grievance
claiming that the Company had overloaded the warehouse fork-
lift drivers with work since September 2002. The grievance
requests that the forklift operators positions be time studied
immediately and that all “affected employees be made whole.”
Olson met with Union Vice President Rick Skillett, a Crete
employee, and Kraus on July 30. She first asked for more in-
formation about the matter grieved. In response, Skillett and
Kraus talked about changes in the warehouse and argued that

9 I base this finding on McDonald’s credible testimony. Olson had
no recollection of this call. Some of Olson’s memory lapses struck me
as creations of convenience.
10 Concededly, Hiser never talked directly to McDonald apart from
the semiannual joint meetings and, even then, he left the sessions to
conduct other business. Rather, he invariably relied on Olson as a
conduit to McDonald.
the forklift drivers should be upgraded to pay level 4 because of
increased complexity involved with the WMS program and
added responsibilities they now shouldered for inventory con-
trol in the warehouse.11 Olson interpreted their arguments to be
an extension of the pay upgrade discussions during the recently
concluded negotiations where Skillett made similar contentions
on the drivers’ behalf. Skillett and Kraus raised no concerns
about safety at this meeting nor did they specifically address
the grievance’s demand for a time study. After hearing them
out, Olson told Skillett and Kraus that she would relay their
arguments to Hiser because she lacked the authority to respond
to this grievance. Skillett asked Olson to arrange for him to
meet with Hiser and she did.
On August 6, Olson and Skillett met with Hiser. Hiser asked
Skillett to explain what the Union sought as a remedy for the
grievance. Skillett explained again that the grievance sought to
have the warehouse forklift driver’s position upgraded to pay
level 4 and he supported his position with the same arguments
made at the July 30 meeting. Hiser asked Skillett to explain
why this matter had not been taken care of during the recent
negotiations. According to Olson, Skillett responded that the
matter “just slipped through.” Presumably, Hiser denied the
grievance but the record contains no written response to the
grievance. By the time of the hearing, the grievance was pend-
ing arbitration. Because of its current status, McDonald claims
that the Union needs its own time study to aid in deciding
whether to proceed to arbitration.
For unexplained reasons, more than 10 months elapsed be-
fore the time study issue arose again. On May 11, 2004,
McDonald e-mailed Olson about two matters. In the part perti-
nent here, McDonald asked: “When would be a good time for
[the Company’s] Industrial Engineer to do a time study with the
Union time study person in the Warehouse?” She reminded
Olson that the Union still had an outstanding grievance “on this
issue with the fork drivers.” Olson replied advising McDonald
that the Company expected executives from its Switzerland
headquarters in early August so management would not be able
to focus on the time study matter until they left.
On August 18, 2004, McDonald again e-mailed Olson seek-
ing the name and telephone number of the Company’s indus-
trial engineer so Sittig and that person could coordinate sched-
ules for the completion of the warehouse time study. In discus-
sions that followed, McDonald and Olson agreed to take the
matter up at the joint labor-management meeting scheduled for
September 14. The agenda of that meeting reflects this topic as
the second matter following a general discussion of safety pro-
tocols.
At the outset of the September 14 meeting, McDonald
sought to establish a protocol for employees to utilize if they
believed a safety issue existed. After that, the parties discussed
the warehouse forklift drivers. When McDonald again asked

11 Pay level 2 employees earned an hourly rate of $13.65 in 2003.
Pay level 4 employees earned $14.07. GC Exh. 2: 48–49. However,
the Company also maintains a performance incentive program that
results in quarterly bonuses ranging from 2-1/2 to 7-1/2 percent of their
quarterly earnings provided employees meet key performance indica-
tors.
NESTLE PURINA PETCARE CO. 899
for a time study, Hiser asked her to explain why she needed it.
She told him that the Union wanted its own time study expert to
determine if a work overload situation existed in order to prop-
erly represent the employees. McDonald also argued that the
drivers’ extended work schedules posed a safety problem.
Hiser told McDonald that he did not quite understand why the
Union thought a time study would accomplish that and asserted
that no safety concern existed in the warehouse. McDonald
reiterated that the time study would tell the Union whether the
Company overloaded the drivers with work and, if so, then it
might be a safety concern. She argued that the Union had a
right by law and by contract to have the time study and after
that had been accomplished, she also wanted to schedule a time
after the national elections to review the Company’s OSHA 300
logs. Hiser responded that the Company would have its safety
manager “pull information together” about the Company’s
safety incidents and they would go over it with her in a subse-
quent meeting. In addition, the Company also committed itself
to doing “some follow up analysis” regarding the pay and
safety issues related specifically to the warehouse forklift driv-
ers.
Following this meeting, Hiser directed Warehouse Manager
Furby, Safety Director Heitman, and Logistics Manager Robert
Taylor to conduct a “risk analysis” of the warehouse operation.
Despite Hiser’s off-handed claim at the September meeting that
no safety problems existed in the warehouse, his own manage-
ment group recommended changes such as the widening of
aisles, removal of some racks adjacent to a loading dock door
(one of which had been implicated in an accident that caused
injury to a worker), and restriping some rows. The Company
adopted these recommendations and made the changes.
Hiser also requested Olson to do an analysis of the forklift
drivers’ pay in relation to the other jobs at the Crete and at sis-
ter plants. Her analysis, Olson vaguely testified, “showed it
was kind of a mixture, nothing seemed out of whack. What we
were doing was pretty comparable on the whole to what they
were doing at the other plants.”
In October, an OSHA investigator conducted an inspection
of the warehouse operation based on a worker’s complaint al-
leging “an inadequate Powered Industrial Truck program and
unsafe forklift usage.” At the conclusion of the on-site inspec-
tion, the investigator orally informed Company officials that he
found no violation of OSHA rules. The OSHA area director
confirmed that conclusion in a letter dated May 23, 2005.
When McDonald went to the plant on November 3, she met
initially with Olson and Heitman. At that time, they made a
slide presentation to McDonald based on Heitman’s analysis of
the Company’s safety incidents and provided McDonald with a
summary.12 This analysis showed that the bulk of the safety
incidents occurred earlier in the workweek and earlier in a shift
which suggested to Company officials that no safety problem
resulted from long workdays or workweeks.

12 The date of this presentation is based on McDonald’s credited tes-
timony. Olson and Heitman thought the presentation occurred on Sep-
tember 23, but their recollection appeared largely influenced by the fact
the analysis (GC Exh. 9) had “9/23/04” written on it.
After Heitman’s presentation, McDonald asked Olson about
the Union’s time study request. Olson told McDonald that the
Company still would not let Sittig do a time study. She said
that Hiser wanted her to submit a letter summarizing the Un-
ion’s rationale for requesting the time study. Although
McDonald agreed to do so, she accused the Company of inter-
fering with the Union’s ability to properly represent the unit
workers by denying access to investigate working conditions in
the warehouse. McDonald asserted that the Union needed the
time study to evaluate the warehouse forklift jobs in order to
determine if a work overload or a safety issue existed. The
Company never provided McDonald with the OSHA 300 logs
requested earlier but it does not appear that she pressed this
issue with Olson at this meeting.
McDonald explained the basis for the time study request in a
letter dated November 26. She stated:
First of all the Union has filed a grievance on behalf of the
workers in the Warehouse for a work overload. These work-
ers have seen an increase in responsibility in work duties, they
are being challenged daily with time constraints as well as lo-
gistical challenges, the configuration of the plant itself pre-
sents challenges, with an increased workload comes safety
concerns, and this very same issue was discussed during the
last negotiations. The Company has also stated that there is
no standard for forklift drivers currently and that the work re-
quirement is only compared to other plants of Nestle Purina.
During the last negotiations, the Union had requested an up-
grade to these workers as their job duties do vary from the
other “forklift” workers in the plant. Mr. Ken Cooper, Nestle
Purina’s Chief negotiator, stated that there were some jobs
that would need to be time studied, this job being one of
those.
The letter concludes by notifying Olson that Sittig would be at
the plant on January 4 for the time study and asked that she
notify the Company’s industrial engineer of Sittig’s planned
visit.
Olson responded in a letter dated December 7, saying that
the Company still did not have a “clear understanding of what a
time study is going to establish.” Olson reminded McDonald
that she had been presented with information “regarding an
assessment of the safety risks in the warehouse and an evalua-
tion of the pay for the forklift operators.” Olson advised that
the Company saw no need for any changes after comparing the
warehouse forklift drivers with other Crete forklift drivers and
drivers at other Company plants. Additionally, Olson said, “we
do not concur that a commitment was made to conduct a time
study.” Olson concluded by telling McDonald that Sittig’s time
study would not be permitted.
Hiser admitted that he made the decision to deny the Union’s
time study request because he concluded “that admitting the
industrial engineer offered no advantage to the employees or
the [C]ompany.” Even though Hiser asserted in his testimony
that the presence of an outsider moving throughout the ware-
house presented an increased “risk of something negative hap-
pening from a safety perspective or a distraction perspective”
because the warehouses are high activity areas, no evidence
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD900
shows that any Company official ever articulated this rationale
to McDonald as a reason for denying access.
B. Further Findings and Conclusions
For some time, the Board treated a bargaining representa-
tive’s request for access to an employer’s plant in order to con-
duct technical tests—such as a time and motion study—as tan-
tamount to a request for information. Fafnir Bearing Co., 146
NLRB 1582, 1585 (1964), enfd. 362 F.2d 716 (2d Cir. 1966).
Ordinarily when a union requests of an employer information
deemed relevant and reasonably necessary to the proper per-
formance of its duties as the employees’ exclusive bargaining
representative, the employer’s duty to bargain in good faith
under Section 8(a)(5) requires prompt compliance with the
request. NLRB v. Acme Industrial Co., 385 U.S. 432, 437
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). A bar-
gaining representative’s right to relevant information exists not
only for the purposes of negotiating a collective-bargaining
agreement, but also for proper administration of an existing
contract. Westinghouse Electric Corp., 239 NLRB 106, 107
(1978).
Based largely on the Court’s opinion on review in Fafnir, the
Board later formulated a balancing test for use in deciding
whether an employer must accommodate a request for access to
its premises by union experts for the purpose of conducting
technical studies. Holyoke Water Power Co., 273 NLRB 1369,
1370 (1985). The Board articulated the following rationale for
this balancing test:
We agree with the Respondent’s contention that an
employer’s right to control its property is a factor that
must be weighed in analyzing whether an outside union
representative should be afforded access to an employer’s
property. NLRB v. Babcock & Wilcox Co., 351 U.S. 105
(1956). Thus, we disagree with the judge’s analysis inso-
far as it finds that a request for access is tantamount to a
request for information; that is, the union is entitled to ac-
cess if it is shown that the information sought is relevant to
the union’s proper performance of its representation du-
ties. While the presence of a union representative on the
employer’s premises may be relevant to the union’s per-
formance of its representative duties, we disagree that that
alone, ipso facto, obligates an employer to open its doors.
Rather, each of two conflicting rights must be accommo-
dated. Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2d Cir.
1966). First, there is the right of employees to be respon-
sibly represented by the labor organization of their choice
and, second, there is the right of the employer to control its
property and ensure that its operations are not interfered
with. As noted by the Supreme Court in Babcock & Wil-
cox, supra, 351 U.S. at 112, the Government protects em-
ployee rights as well as property rights, and
“[a]ccommodation between the two must be obtained with
as little destruction of one as is consistent with the mainte-
nance of the other.”
Thus, we are constrained to balance the employer’s
property rights against the employees’ right to proper rep-
resentation. Where it is found that responsible representa-
tion of employees’ can be achieved only by the union’s
having access to the employer’s premises, the employer’s
property rights must yield to the extent necessary to
achieve this end. However, the access ordered must be
limited to reasonable periods so that the union can fulfill
its representation duties without unwarranted interruption
of the employer’s operations. On the other hand, where it
is found that a union can effectively represent employees
through some alternate means other than by entering on
the employer’s premises, the employer’s property rights
will predominate, and the union may properly be denied
access.
Applying the Holyoke balancing test here, I have concluded
that the Union’s request for warehouse access to conduct a time
study outweighs the Company’s property rights. Accordingly, I
have concluded that the Company must afford the Union’s
designated expert reasonable access to conduct the proposed
time and motion study. Exxon Chemical Co., 307 NLRB 1254
(1992).
Hardly any dispute exists about the fact changes occurred at
the Crete warehouses in mid-2002 that substantially impacted
the work of the loaders and line pullers. This had become ap-
parent to the Union as early as September 2002 when it sought
a meeting to address the resultant worker complaints. How-
ever, at the Company’s request, the Union deferred that discus-
sion until collective-bargaining negotiations. When the new
contract negotiations started, the Union submitted its proposal
73 seeking to upgrade those two classifications as well as sev-
eral others based on various changes. Although the Company
did not agree to an immediate upgrade, its negotiator expressed
his willingness to time study the jobs but explicitly stated that
such a study could result in a downgrading of the forklift
driver’s position. The unmistakable inference is that any up-
grade for the forklift drivers would require a time study justifi-
cation. Moreover, I conclude that the Company induced the
withdrawal of proposal 73 by agreeing to permit Sittig’s time
study. For those reasons, I find the situation here factually
distinguishable from Brown Shoe Co. v. NLRB, 33 F.3d 1019
(8th Cir. 1994), a case cited and heavily relied upon by Re-
spondent.
Consistent with the understanding during negotiations, the
Union sought access to time study the warehouse, the loaders,
and line pullers shortly after the contract’s ratification. The
July 3, 2003 grievance formalized this time-study demand. The
grievance, prepared by an in-plant steward, explicitly com-
plains of a “work overload,” but impliedly embraces the forklift
drivers’ added duties, and increased job complexity and respon-
sibility. The upgrade arguments Rick Skillett made at the
grievance meetings and McDonald’s subsequent reference to
the Union’s safety concerns establishes the hybrid character the
grievance acquired. As McDonald explained, the Union ulti-
mately seeks to either upgrade the loaders and line pullers be-
cause of the 2002 changes or, to adjust their duties so they be-
come compatible with their existing pay level.13 Regardless,

13 Respondent fashioned various arguments in its brief premised on
McDonald’s reference to the Union’s concern about safety. I find these
arguments lack merit as they incorrectly assume that her incidental
safety contentions at the September 2004 joint meeting represented the
NESTLE PURINA PETCARE CO. 901
the access requests have a very legitimate and intimate connec-
tion to the Union’s duties and obligations as the exclusive em-
ployee representative.
I also find the Union’s access requests relevant and reason-
able. At negotiations, the Company’s chief spokesman unde-
niably tied any change of grade for these positions to time stud-
ies. This prompted the Union to propose a time study by its
own expert, a particularly understandable request in light of the
lead negotiators common understanding that a time study could
result in a position downgrade instead of an upgrade. In view
of the Company negotiator’s own assertions about the necessity
of a time study for the driver positions, it becomes difficult
logically to conclude that the requested testing might lack rele-
vance or have a meaningful alternate approach.14 Clearly, a
high probability exists that the proposed time study will pro-
duce significant information that would aid the Union to intelli-
gently evaluate the merits of its July 3 grievance before pro-
ceeding to arbitration. In this context, I conclude that no ade-
quate substitute exists for actual on-the-job testing. Exxon
Chemical Co., supra; Wilson Athletic Goods Mfg. Co., 169
NLRB 621 (1968). Respondent’s arguments faulting the Union
for failing to request and analyze work output data, safety data,
and disciplinary record lacks merit. Based on the position Re-
spondent took during negotiations that shows a clear connec-
tion between a time study and its willingness to upgrade these
positions, I fail to see the efficacy of these alternative materials.
Several other considerations support an accommodation in
this case. Thus, as the postnegotiations access requests
evolved, McDonald actually invited the Company’s time study
expert to jointly participate with Sittig during the testing. This
request for joint participation strongly indicates the Union’s
amenability to testing in a manner likely to be least disruptive
to the Company’s operations as required under Holyoke princi-
ples. At a minimum, the presence of the Company’s own ex-
pert along with Sittig provides a substantial reassurance that the
testing would be conducted in a professional manner and with
as little interference in ordinary warehouse operations as possi-
ble. Moreover, the Company’s rejection of Skillett’s upgrade
requests during the grievance meetings, and the Company’s
subsequent rejection of an upgrade based on Olson’s informal
and unilateral survey of similar classifications at other Com-
pany facilities elevated the relevance of the request by arguably
triggering the application of contract article II, section 11,

sole motivation for the time study request. The evidence strongly sup-
ports the conclusion that her safety argument at that time grew out of
the overall safety discussion that immediately preceded the discussion
about the forklift drivers. Consequently, when that discussion con-
cluded and the long-festering forklift driver issue came up next, Hiser
(as he did several times) demanded that the Union justify its request for
a time study. McDonald immediately addressed a safety concern about
the forklift driver situation. I find her justification effort an incidental
and logical outgrowth of the safety discussions the parties just com-
pleted.
14 In its brief, Respondent also contends that a time study cannot be
done because it neither has nor enforces a work performance standard.
I reject this contention in view of the ample evidence showing the
Respondent pressures its loaders to load four trucks per shift or explain
why they did not. Likewise, the drop rate for the Alvey palletizer ap-
pears to establish an ad hoc standard for the line pullers.
which provides for the resolution of such issues under the con-
tractual grievance/arbitration system.15 The fact that the Union
advanced contentions from time-to-time about the safety result-
ing from added work load requirements only enhances the rele-
vance to the information the Union seeks from direct observa-
tion and testing. C.C.E., Inc., 318 NLRB 977, 998 (1995);
Minnesota Mining & Mfg. Co, 261 NLRB 27, 29 (1982). In
fact, the physical changes made in the warehouse following the
Company’s risk analysis ordered by Hiser after the September
2004 joint meeting demonstrates the value of direct, expert
observation the Union sought all along and continues to seek.
Here, as in American National Can, 293 NLRB 901, 905–
906 (1989), Respondent has already “contractually agreed to a
limited infringement of its property rights.” Aside from the
recent negotiations, the contractual commitments and practices
concerning access by union agents substantially diminish Re-
spondent’s property claims. The CBA provides for union ac-
cess and union representatives regularly avail themselves of
this privilege. Although Union Agent Lee nearly always con-
fines her visits to the lunchroom when meeting with employees,
both Lee and McDonald have toured plant’s work areas. In the
absence of evidence to the contrary, this history demonstrates
the Union’s respect for the Company’s production require-
ments. No basis exists to conclude, as Respondent argues in its
brief, that the contractual access provision only contemplates
lunchroom visits.
Respondent makes numerous unmeritorious contentions re-
garding the deficiencies of the pending grievance under the
contractual grievance-arbitration system. Thus, it argues that
the grievance is untimely under article XII, section 2. How-
ever, by its terms, that provision refers to grievances filed by an
employee. By contrast, article XII, section 6, provides “either
party” may file a grievance, and, unlike section 2, that provi-
sion contains no time limits. Respondent cites section 6 for an
added claim that the grievance is not arbitrable because it fails
to “clearly set forth the issues and contentions of the aggrieved
party,” and this grievance makes no reference to safety. As
found above, I have concluded that even though the Union
raised an incidental safety contention, it advanced abundant
other reasons for its work overload claims. Finally, Respondent
argues that the grievance would not be arbitrable because it
does not relate to some specific contractual provision as re-
quired under article XII, section 7. Having concluded that the
grievance concerns a claim that Respondent improperly graded
the two warehouse driver classifications following changes in
2002, I find this contention without merit as article II, section
11, specifically provides for the resolution of these types of
disputes.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce or an
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.

15 Under sharp questioning by Respondent’s counsel, McDonald
specifically alluded to this provision as being relevant to the pending
grievance. Tr. 68: 22.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD902
2. The Union, a labor organization within the meaning of
Section 2(5) of the Act, is the exclusive collective-bargaining
representative of the following appropriate union of employees
within the meaning of Section 9(a) of the Act:
All production and maintenance employees, including regular
part-time employees employed at Respondent’s Crete, Ne-
braska facilities, excluding non-working supervisors, sales-
men or office personnel, temporary employees or any em-
ployees being trained for sales or executive positions.
3. By refusing to grant the Union’s industrial engineer ac-
cess to its Crete, Nebraska warehouses in order to conduct a
time and motion study of the warehouse forklift operators, Re-
spondent engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5), and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist, and to take certain affirmative action designed to effec-
tuate the policies of the Act. My recommended Order will
require that Respondent, upon request, grant access to a Union-
designated expert for the purpose of conducting a time and
motion study of Respondent’s warehouse forklift drivers. This
accommodation may be limited to reasonable periods and at
reasonable times, consistent with the times least likely to dis-
rupt Respondent’s operations but which will permit the Union’s
expert to complete the testing requested. Hercules Incorpo-
rated, 281 NLRB 961 (1986).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, Nestle Purina Petcare Company, Crete,
Nebraska, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with District Union
271, United Food & Commercial Workers, AFL–CIO–CLC,
(Union) by denying the Union’s request for access to Respon-
dent’s Crete, Nebraska warehouses for the purpose of having an

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
expert selected by the Union conduct time and motion studies
of the warehouse forklift drivers.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request, grant access to its Crete, Nebraska ware-
houses at reasonable times and for reasonable periods sufficient
for an expert designated by the Union to conduct time and mo-
tion studies of the warehouse forklift drivers.
(b) Within 14 days after service by the Region, post at its fa-
cility in Crete, Nebraska, copies of the attached notice marked
“Appendix.”17 Copies of the notice, on forms provided by the
Regional Director for Region 17, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
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. In the event that, during the
pendency of this proceeding, it has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since July 3, 2004.18
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

17 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.”
18 The Union’s request for access has clearly been renewed continu-
ously throughout this lengthy dispute. However, as the Union filed the
charge on January 3, 2005, no unfair labor practice finding could pre-
date July 3, 2004, because of the limitations contained in Sec. 10(b).
For that reason, I find this date comports with the requirement in Excel
Container, Inc., 325 NLRB 17 (1997).