ST. LOUIS (CN) – Dollar General failed to show an employee said to have threatened fellow co-workers leading up to a union-ratification vote was acting as an agent of the union, the Eighth Circuit ruled Thursday.
The decision means the discount store chain must recognize the United Food and Commercial Workers Local 655 as the collective bargaining unit for its store in Auxvasse, a small city with a population of less than 1000 people located 93 miles west of St. Louis. The store took the union vote in December 2017, becoming the first Dollar General store to unionize.
The chain’s attorney, William Peterson, claimed before the St. Louis-based appeals court in September that Dollar General employee Adam Price, while advocating for the Commercial Workers, threatened to slash the tires of anyone voting against the union. The threat was enough to sway the vote of at least one employee, Preston said.
Dolgencorp, doing business as Dollar General, argued that the union certification is not valid because the election could have been changed by one vote had Price not threatened and attempted to bribe fellow employees.
Price denies making the threat in documents submitted to the National Labor Relations Board, which Dolgencorp sued after it certified the result of the election.
“Dollar General is disappointed in the decision from the United States Court of Appeals for the Eighth Circuit,” the company said in a statement. “We continue to believe that the union engaged in conduct during the December 2017 election in Auxvasse, Missouri that unfairly tainted and influenced the outcome. We also continue to believe our employees are best served by the ability to speak and work directly with the Company on matters impacting their employment and work conditions.”
Peterson, of the global law firm Morgan, Lewis & Bockius, also argued that Price gave $100 to a fellow employee right before the vote.
Those votes are significant given the unique circumstances surrounding the vote, which consisted of just six employees at the Auxvasse store. Dollar General claimed that the final vote of 4-2 approving the union was affected by the threats and other actions and that employees were only given 24 days between signing the union cards and the election.
During the hearing, the three-judge panel questioned Peterson on whether Price was actually an agent of the union. The appeals court’s skepticism about Price’s affiliation was a main theme in the 17-page opinion.
“Dolgencorp identifies only tenuous, if not irrelevant, manifestations from the Union, like the fact that Price accompanied (Billy Myers, a union organizing director) on his initial meetings with the other employees who signed authorization cards and that Myers asked Price to distribute the Union’s survey material to the same employees,” U.S. Circuit Judge L. Steven Grasz, a Donald Trump appointee, wrote.
“Dolgencorp also argues Myers visited Auxvasse only three times – once for the election – leading the employees to believe Price had the authority to act on the Union’s behalf when Myers was not physically present,” the judge added. “Yet, Myers updated and stayed in regular contact with the other employees throughout the unionization process using group text messages. And when Myers went on vacation in November, he told the employees his Union colleague, not Price, would help them in his absence.”
The appeals court also upheld a pair of objections made by Dollar General – the first having to do with whether the alleged tire slashing threat occurred inside a critical election time period and the second on the NLRB’s decision to credit Price’s testimony about the $100 loan over the co-worker’s testimony who accepted it.
During the September hearing, NLRB attorney Valerie Collins argued that the board officer who presided over the hearing regarding the concerns about Price’s action was in the best position to judge his credibility. She said the employee who made the threat claim against Price changed her story several times and that the transcript does not reflect other factors such as the demeanor of the witnesses.
Collins argued that Price simply acted as a typical employee who was passionate about union membership, calling his actions “standard.”
She also said the $100 given to the fellow employee was a loan that came after Dollar General had slashed their hours.
The Eighth Circuit found that there was no substantial evidence to overturn the NLRB’s decisions in either objection.
The NLRB did not immediately respond to a request for comment.
Judges Raymond Gruender, a George W. Bush appointee, and Morris Arnold, a George H. W. Bush appointee, joined Grasz in the decision.