Labor & Employment Law Daily Dollar General can’t overturn union election results based on employee’s unilateral conduct
Tuesday, February 18, 2020

Dollar General can’t overturn union election results based on employee’s unilateral conduct

By Ronald Miller, J.D.

The employer’s apparent-authority theory was flawed because that it relied on a staffer’s own unilateral conduct (he initiated contact with the union, volunteered to keep in touch with a coworker, and openly supported the union), and not the conduct of the union itself.

Dolgencorp, the parent company of Dollar General Stores, engaged in an unfair labor practice by refusing to recognize union representation of employees in a Missouri store after they voted 4-2 for the union, ruled the Eighth Circuit, granting the NLRB’s cross-petition for enforcement of its order. Contrary to the employer’s contention, the employee who initiated contact with the union was not an agent of the union authorized to act on its behalf. Moreover, substantial evidence supported the Board’s finding that the employee’s alleged tire-slashing threat occurred, if at all, outside the critical period and so did not impact the election. Additionally, the appeals court rejected the employer’s contention that the employee’s alleged offer of an unconditional $100 loan was objectionable, finding that it did not impair another employee’s free choice in the election (Dolgencorp, LLC v. NLRB, February 13, 2020, Grasz, L.).

Sales staff contact union. In November 2017, at a Dollar General store in Missouri, one of its lead sales associates, Adam Price, became upset when the employer decided to reduce his and other sales associates’ work hours. He contacted a union and spoke with an organizing agent, Billy Myers. Price was told to ask his coworkers if they were interested in unionizing. He spoke with three coworkers. One week later, he told Myers that four sales staff employees were interested.

Organizing campaign. On November 13, 2017, Myers met with Price and a coworker at a local convenience store, and they signed authorization cards. Myers and Price then met with a third employee at the Dollar General store, who signed an authorization card during his break. Finally, Myers and Price met with the fourth employee at her home, and she also signed an authorization card.

On November 14, the union filed an election petition with the Board, and the union and employer agreed to the terms of the election to be held on December 8. Thereafter, the union agent created a group text message to update the employees and arrange meetings. The employees only expressed support for the union; they never told Myers and Price that they no longer supported union representation.

Alleged misconduct. On December 8, the employees voted to unionize by a count of 4-2. Immediately after the election, the employer’s vice president for HR spoke with two of the employees who told her that they wanted to change their votes because Myers and Price had pressured them to support the union. One employee alleged that Price threatened to slash her tires if she voted against the union, while the second employee asserted that he promised to pay her $100 if she voted for the union.

Acting as union agent. On December 14, the employer filed objections to the election, alleging that Price acted as an agent of the union and engaged in misconduct that materially affected the result of the election. The Board held an evidentiary hearing on January 3, 2018, and a hearing officer rejected the employer’s objections that Price engaged in misconduct as an agent of the union. As to the threat to slash an employee’s tires, it was not shown that that threat occurred within the critical period. With respect to the second claim, the hearing officer credited Price’s testimony that he offered the coworker $100 because she was upset and worried about the reduction in her work hours.

Refusal to bargain. After the employer filed objections to the hearing officer’s report, a regional director overruled those objections and certified the union. But the employer refused to recognize the union as the employee’s representative based on its objections to the validity of the election, and the General Counsel issued an unfair labor practice complaint alleging the employer violated Section 8(a)(5) and (1).

Procedural posture. The Board granted the General Counsel’s motion for summary judgment, and the employer petitioned for review of the Board’s summary judgment order. For its part, the Board cross-petitioned for enforcement of its order. On review, the employer challenged the Board’s certification decision, arguing that the election was flawed because Price separately engaged in threatening and nonthreatening conduct as an agent for the union that materially affected the outcome of the election. It also alleged that Price’s hearing testimony lacked credibility.

Credibility determination. The Eighth Circuit first addressed the employer’s contention that the Board should not have credited any of Price’s hearing testimony because of his comment that witness sequestration was pointless. Based on the record as a whole, however, the court determined that substantial evidence supported the conclusion that Price did not make the comment to intimidate a coworker or to influence her hearing testimony.

Agency relationship. The appeals court next addressed the Board’s conclusion that Price did not engage in misconduct as a union agent. To establish an agency relationship, the employer advanced a theory of apparent authority—which would require that the union had reasonably led the employer to believe that Price was acting as the union’s agent.

Here, the employer’s apparent-authority theory was flawed to the extent that it relied on Price’s own unilateral conduct, like the fact that he initiated contact with the union, volunteered to keep in touch with a coworker because he had no cell phone, and openly supported the union. These actions were not manifestations from the union, and Price’s simply “engaging in union campaign activity” does not establish apparent authority to act on the union’s behalf.

Further, the fact that the union organizer accompanied Price on his initial meetings with other employees who signed authorization cards and asked Price to distribute union survey materials to the employees did not support a finding that the union held him out as an agent. Moreover, the fact that Myers visited the local area only three times did not lead employees to believe that Price had authority to act on the union’s behalf when he was not present. Rather, Myers kept in regular contact with the other employees throughout the unionization process with text messages. Thus, the Board’s agency determination was supported by substantial evidence.

Tire slashing threat. As to the employer’s objection related to the tire-slashing threat, the Board found that if Price threatened to slash anyone’s tires, the threat occurred three days before the union filed the election petition and was outside the critical period. Citing Ideal Electric & Manufacturing Co., the Board concluded that objectionable conduct occurring outside the critical period was not grounds for setting aside the election. Although the employer argued that the Board’s factual finding was not supported by substantial evidence and its application of Ideal Electric was erroneous, the appeals court deferred to the Board’s credibility determination and concluded that the Board’s finding about the timing of the alleged tire-slashing threat was supported by substantial evidence.

Attempted bribe. Finally, the Board found that Price did not attempt to bribe a coworker for her vote but offered an unconditional $100 loan. Because the coworker had signed a union authorization card, made pro-union statements in group text messages, and never indicated to Price that she no longer supported the union, the hearing officer found that there was no evidence that Price “had to bribe Durlin for a yes vote.” The Board found no basis for reversing the hearing officer’s credibility determination.

Still, the impact of the loan had to be considered under the applicable legal standard. The Board evaluated Price’s offer under its standards for nonthreatening third-party conduct. For nonthreatening third-party conduct, the Board determines whether the conduct “substantially impair[ed] the employees’ exercise of free choice.” Here, the appeals court concluded that, based on the hearing officer’s credibility determination and its citation to Cornell Forge, the Board concluded that the offer of an unconditional $100 loan was not objectionable because it did not impair the employee’s free choice in the election.

Accordingly, the appeals court denied the employer’s petition for review and granted the Board’s petition for enforcement.

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