Arthur F. Silbergeld

Seated at a union-management bargaining table in Alabama, Silbergeld and officials of his cement delivery company client were startled to see the handle of a pistol in a holster on the belt of one union representative. The man acknowledged he was carrying a weapon and said he had brought it to earlier negotiating sessions. Asked why, he said, "I always carry my gun because there are a lot of crazies out there."

Silbergeld and colleagues asked, "Are we the crazies?"

The man didn't answer that query, said Silbergeld, who continued to lead the negotiations even as he defended his client's refusal to bargain with anyone carrying a weapon. "Employers have the right to refuse to bargain with someone who is engaged in potential or actual violent conduct," he said. Referring to the National Labor Relations Board, he added, "There's board law to that effect. A question remains whether someone with a permit in an open carry state [like Alabama] has the right to carry a concealed weapon to a bargaining session."

The problem is, Silbergeld said, "negotiations are often adversarial. They can become heated. People lose their tempers." His research showed that there have been a handful of cases where parties have refused to bargain due to intimidating conditions. "I know by hearsay of the head of a local in Los Angeles who had a gun in his office for protection, but that was 25 years ago. We could find only six reported cases over 80 years, so it's rare."

Despite the potential clash between the Second Amendment and NLRB policy, Silbergeld and the other union reps — minus their gun-toting colleague — continued to bargain for several months but failed to reach agreement on essential terms. A majority of employees in the bargaining unit then petitioned to decertify the union, which disclaimed further interest in representation, Silbergeld said. The matter ended in November 2015. Ready-Mix USA and Local 402, International Brotherhood of Teamsters, 10-RD-163976

In a case of first impression, Silbergeld defended Telefund Inc. against a potential class action under the Telephone Consumer Protection Act on claims that the client allegedly violated his withdrawn permission for future communications after the plaintiff provided a cell phone number and agreed to donate to a charity. A federal judge in San Diego ruled that when a nonprofit charity outsources its fundraising functions to a for-profit entity like Telefund, that entity enjoys the same exemption from coverage under the act that the charity does. Nguyen v. Telefund Inc., 3:13-cv-01607 (S.D. Cal., filed Jan. 2, 2015) "That issue had never been tested, so we were glad to get the result," Silbergeld said.

— John Roemer