Second Amendment meets NLRA at Ready Mix USA bargaining table

The account here last month of an accident-prone building materials truck driver who commanded the National Labor Relations Board General Counsel’s attention pales against the outcome of a complaint NLRB Administrative Law Judge David Goldman weighed in a mid-September decision.

The judge ordered Alabama-based Ready Mix USA LLC to meet with Teamsters Local 402-designated representatives, including a shop steward who brought a firearm to an early-2015 bargaining session. A union complaint alleged a National Labor Relations Act (NLRA) violation stemming from the producer’s refusal to participate in any meeting the steward is present.

Judge Goldman reviews evidence, legal motions and precedent he sees favoring Local 402, which was certified in October 2014 as the collective bargaining representative for 19 drivers and yard staff at Ready Mix’s Huntville, Ala., concrete plant. The complaint emanated from a February session, during which Ready Mix management and counsel observed that Teamsters steward Jerry Davis bore a handgun, partially concealed by clothing. He acknowledged frequent weapon possession, owing to a concealed carry permit and views on personal safety.

Ready Mix attorneys fervently protested Davis’ action in correspondence the following day with Local 402 officials. The producer also suspended Davis as part of an investigation to determine if a gun had been brought to work, reinstating him with backpay satisfied of no such occurrence. Local 402 officials claimed they entered the bargaining session unaware of the weapon; condemned the steward’s action; and, indicated assurances from Davis that he would not bring a gun to any future meetings with the employer. They did not commit to designating an alternate steward from the Huntsville plant ranks.

Ready Mix petitioned the NLRB regional office in Birmingham to pursue a complaint against Local 402, alleging NLRA violation through bad faith bargaining. “By intimidating and harassing conduct, the Union engendered such ill will among members of the employer’s representatives as to render good faith bargaining impossible as long as the gun-toting representative remains on the Teamsters Local No. 402 bargaining team,” the company contended.

Explaining a decision not to issue a complaint on Ready Mix’s behalf, the regional director concluded, “The mere fact that an employee member of the Union’s negotiating team had a firearm on his person during a bargaining session is insufficient to establish a [NLRA] violation as alleged.”

The producer later noted bargaining sessions involving Davis could proceed, provided he was off premises and communicating by telephone. Local 402 officials held firm on the steward’s right to be at the bargaining table, and countered the Ready Mix motion by petitioning the NLRB regional office to issue the complaint— alleging refusal to bargain—heard before Judge Goldman. In his decision, he noted as firmly grounded that “each party to a collective bargaining relationship has both the right to select its representative for bargaining and negotiations and the duty to deal with the chosen representative of the other party.” Citing a 1976 NLRB case, he added, “A narrow exception to this rule is triggered when there is ‘persuasive evidence the presence of a particular individual would create ill will and make good-faith bargaining impossible.’”

“The standard is not based on the subjective asserted reactions of individual bargainers to the misconduct. Rather, the Board looks at the conduct of the representative with whom the Respondent is refusing to meet and makes an objective determination of whether the conduct is reasonably likely to create ill will sufficient to make good faith bargaining impossible … If Davis’ mere presence causes sufficient ill will to make collective bargaining impossible, it is not because of Davis’ conduct but because Respondent [Ready Mix] has chosen to make it so.”

The judge’s decision does not necessarily close the case, nor are Huntsville plant employees guaranteed a contract any time soon. In the event the matter winds through NLRB channels or up to a federal court level, Ready Mix USA can’t be faulted for upholding a principle gun interests know well: Stand your ground.