Dolgencorp, LLC v. NLRB, 950 F.3d 540

Background

Dollar General’s Auxvasse, MO store had six eligible voters (three lead sales associates, three sales associates). Adam Price (lead) organized with Union; four employees signed authorization cards after meetings in November 2017.
Union filed an election petition Nov. 14, 2017; parties agreed to an election for Dec. 8, 2017. Organizing communications included group text messages run by the Union organizer, Billy Myers.
Election result: 4–2 for the Union. After the vote two pro‑union employees (Miles and Durlin) told HR they had been pressured by Price—alleging a tire‑slashing threat and a $100 inducement. Dolgencorp timely objected and the Board held an evidentiary hearing.
Hearing Officer and Regional Director credited Price’s testimony: he was not an agent of the Union (apparent authority not shown); the alleged tire threat, if made, occurred before the Board’s defined critical period; and the $100 was an unconditional loan, not a bribe. The Regional Director certified the Union.
Dolgencorp refused to bargain; the NLRB’s General Counsel charged unfair labor practice, the Board granted summary judgment ordering recognition and bargaining, and Dolgencorp petitioned for review. The Eighth Circuit denied review and enforced the Board’s order.

Issues

Issue	Plaintiff's Argument (Dolgencorp)	Defendant's Argument (Board/Union)	Held
Was Price acting as a Union agent (apparent authority)?	Price’s leadership, initiation of contact with Union, and Union organizer treating Price as a "contact" made him the Union’s agent.	Union did not manifest authority; contacts and campaign activity alone do not create apparent authority.	Board’s finding that no apparent‑authority agency existed is supported by substantial evidence; Price treated as third‑party employee.
Did Price’s alleged tire‑slashing threat invalidate the election?	The threat coerced voters and materially affected the 4–2 result (critical because one vote margin).	Threat either did not occur in the critical period or did not affect outcome; evidence shows it occurred before petition filing.	Court upheld Board’s finding that the threat, if it occurred, was before the filing (outside critical period) and therefore not grounds to set aside the election; Dolgencorp forfeited any broader legal challenge to the critical‑period rule.
Did Price’s $100 offer invalidate the election (bribe/inducement)?	The $100 inducement substantially impaired free choice and skewed the election.	Price offered an unconditional loan (not contingent on a yes vote); as third‑party nonthreatening conduct it did not substantially impair free choice.	Board’s credibility choice and conclusion that the unconditional $100 loan did not substantially impair Durlin’s free choice is supported by substantial evidence; overruled objection.
Did Price’s sequestration‑area comment destroy his credibility?	The comment showed intent to intimidate and undermines his testimony.	Comment was not directed at Durlin and reflected a misunderstanding, not intimidation.	Court found substantial evidence supporting Board’s credibility assessment that the comment was not an attempt to intimidate; credibility stands.

Key Cases Cited

Warren Unilube, Inc. v. NLRB, 690 F.3d 969 (8th Cir. 2012) (employer may obtain review by refusing to bargain and litigating election flaws)
Boire v. Greyhound Corp., 376 U.S. 473 (1964) (procedural pathway for judicial review of representation proceedings)
Millard Processing Servs., Inc. v. NLRB, 2 F.3d 258 (8th Cir. 1993) (agency/apparent‑authority principles and standards for union‑attributable misconduct)
Savair Mfg. Co. v. NLRB, 414 U.S. 270 (1973) (third‑party financial benefits may affect fairness of election)
Tschiggfrie Props., Ltd. v. NLRB, 896 F.3d 880 (8th Cir. 2018) (standard of review for Board certification decisions)
ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079 (8th Cir. 2016) (substantial‑evidence review and deference to Board credibility findings)
NLRB v. La‑Z‑Boy Midwest, 390 F.3d 1054 (8th Cir. 2004) (definition of substantial evidence)
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (courts may not supply reasons the agency did not give)
SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency decisions must state adequate basis for review)
NLRB v. RELCO Locomotives, Inc., 734 F.3d 764 (8th Cir. 2013) (section 10(e) preserves Board‑level preservation requirement)