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Labor Relations Update

Mark Theodore

Mark Theodore Mark Theodore is a Partner in the Labor & Employment Law Department in the Los Angeles office. He has devoted his practice almost exclusively to representing management in traditional labor law matters all across the U.S. with a focus on representing union-free employers. His practice consists of educating management, conducting extensive vulnerability audits and assisting clients in the development and implementation of preventive workplace practices, procedures and programs. In assisting these clients, Mark strives to help them meet their goal of avoiding the filing of representation petitions by labor organizations, and, should a petition be filed, assists clients in proceedings before the NLRB. Some highlights include:

  • Handled 90+ representation campaigns through to election in a wide variety of industries, including health care, hospitality/service, manufacturing, distribution, maritime, retail, construction and others
  • Successfully challenged the San Francisco International Airport Card Check Ordinance, forcing the union to attempt to organize through an NLRB election, resulting in the first and only known defeat of a union organizing attempt at the Airport
  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles
  • Successfully defended a major theme park when the NLRB sought bargaining order after the union failed in two elections
  • Coordinated employer response in numerous strike situations, including at major Northern California nursing home chain, U.S. West (involving 14 western states) and Overhead Door (replacement of work force followed by successful decertification)
Mark has extensive experience handling unfair labor practice charges from the date they are filed through trial and appeal. He also represents unionized employers in arbitration proceedings and in the negotiation and administration of collective bargaining agreements. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining. In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Posts by Mark Theodore

NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k)

Posted in Decertification elections, Employer policies, Handbook, NLRA, NLRB, Section 8(a)(1), Uncategorized

The last few months have seen very little in the way of NLRB decisions.  The recent Supreme Court decision  where the recess appointments to the NLRB were invalidated, likely will further slow down the process of issuing decisions. Still, the NLRB has had a full complement of members for almost a year, and the agency manages to… Continue Reading

Supreme Court Invalidates Recess Appointments To NLRB: Several Labor Board Decisions Now In Doubt

Posted in Collective Bargaining, NLRA, NLRB, Recess appointments, Unfair Labor Practices, Workplace Investigations

In a rare 9-0 decision issued today, the United States Supreme Court invalidated the recess appointments President Obama made to the NLRB on January 4, 2012, while the Senate was in a three day recess.  The decision in National Labor Relations Board v. Noel Canning (USSC June 26, 2014) means that the NLRB was operating without the requisite… Continue Reading

NLRB Prepared (Sort Of) For Government Shutdown

Posted in General Counsel, NLRA, NLRB

The shutdown of the federal government has reached many facets of society, including the NLRB.   The agency for all intents and purposes closed within a day of the lapse in funding, with Board agents throughout the country sending e-mails and letters to parties informing them case handling  had been suspended and directing everyone to the NLRB’s… Continue Reading

NLRB Rules That Union’s Offer To Waive Dues For Six Months To Make Up For Tiny Wage Increase Did Not Interfere With Decertification Election

Posted in Collective Bargaining, Employer policies, Handbook, NLRA, NLRB, Objectionable Conduct, Recess appointments, Representation Elections, Uncategorized

As of July 31, the NLRB has a full complement of Board Members, for the first time in about ten years.  The fact the deal on appointments has been progressing for a few weeks did not prohibit the three member Board of questionable constitutional validity from continuing to render decisions.  The NLRB recently ruled that… Continue Reading

NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected

Posted in Due Process, Healthcare Employers, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Workplace Investigations

A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.”  We noted, for instance, that the Board recently held that an employee’s use of derogatory gender-based comments  may not not render a protected outburst “unprotected,” even if the EEOC and the myriad State… Continue Reading

NLRB Rights Poster Rule Gets Torn Down Again, This Time By Fourth Circuit

Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Uncategorized

Of the many actions by the NLRB during the last few years, one of the most contentious has been its attempt to require all private employers falling under its jurisdiction to post a notice informing employees of their rights to unionize.  The notion of posting such a notice was considered bad enough, but when the NLRB… Continue Reading

NLRB Upholds One Election, Overturns Another In Pair Of Decisions

Posted in NLRA, NLRB, Objectionable Conduct, Representation Elections, Uncategorized

The very real questions about the NLRB’s decision-making authority may have finally slowed the agency down.  We have come to expect over the last few years, a relentless expansion of NLRB authority and reach, especially given the December timeframe when all sorts of surprises seem to come out of the agency.  So, it is somewhat noteworthy… Continue Reading

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

Posted in Advice, Facebook, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies

Social media permeates society.  It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace.  We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review… Continue Reading

DC Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Section 8(a)(1), Unfair Labor Practices

A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National Labor Relations Act.   The NLRB’s rule has been controversial from the start as it didn’t just require the posting… Continue Reading

U.S. Government Formally Seeks Supreme Court Review Of Recess Appointment Case

Posted in NLRB, Rulemaking

As noted here earlier, the government announced its intention to seek Supreme Court review of the DC Circuit decision which held that the President’s recess appointments to the NLRB were unconstitutional.  The 138 page document NLRB v. Noel Canning, A Div. of Noel Corp., Cert Petition (April 24, 2013) was filed with the U.S. Supreme Court yesterday. … Continue Reading

NLRB: Employer Responsible For Backpay Of Union Representative Allegedly Injured During Workplace Assault

Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized, Unfair Labor Practices

The NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries after being pushed down a flight of stairs at a work site.  The case is Norquay Construction, Inc., 359 NLRB No. 93 (April 16, 2013).  The facts involved a construction project.  The general contractor was non-union but… Continue Reading

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, Mandatory submissions, NLRA, NLRB, Section 7, Social Media Policies, Uncategorized

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act.  In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of… Continue Reading

Update: NLRB Seeks U.S. Supreme Court Review Of Recess Appointments

Posted in Duty to furnish information, NLRA, NLRB, Recess appointments, Rulemaking, Witness statements

The NLRB announced today that the agency would seek U.S. Supreme Court review of the D.C. Circuit decision in Noel Canning, which ruled that the President’s recess appointments made last year (and perhaps in the years prior) were unconstitutional.  The decision of the appeals court has cast a great deal of uncertainty over past and current… Continue Reading

Ambush Election Rules Fall Into Noel Canning Abyss As Court Puts Hold On Decision

Posted in NLRA, NLRB, Recess appointments, Representation Elections, Rulemaking

The fallout from Noel Canning has been felt far and wide.  The DC Circuit Court’s January 25, 2013 decision certainly put all NLRB decisions made since January 4, 2012 (the date Members Block and Griffin received their recess appointments) in jeopardy.  All cases on appeal to the DC Circuit involving panels which included Block and Griffin have… Continue Reading

Court Rules Recess Appointments To NLRB Unconstitutional, More Uncertainty To Follow

Posted in NLRB, Recess appointments, Uncategorized

As we noted last month, the federal court of appeals in DC heard the first case on the constitutionality of the recess appointments to the NLRB.  Today, a three judge panel ruled unanimously that the appointments of Members Griffin, Block and Flynn were unconstitutional, meaning this court decided the NLRB has lacked a quorum since at… Continue Reading

NLRB Overrules Another Longstanding Precedent: Witness Statements No Longer Exempt From Disclosure

Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Uncategorized, Witness statements

The precedents are falling fast.  Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen.  The NLRB issued a decision overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978), the case that held that witness statements obtained during an employer investigation of workplace misconduct are exempt from disclosure… Continue Reading

Update: Revised Persuader Reporting Regulations One Step Closer To Reality

Posted in Advice Exemption, Department of Labor, Labor Relations Consultants, Persuader Rules

On Friday, December 21, 2012 the Administration published its regulatory agenda for the coming year.  The Administration usually publishes a Spring version but did not do so in 2012.  Among the several regulations in process, the regulatory agenda notes that the U.S. Department of Labor’s proposed narrowing of the 50 year interpretation of the “advice” exemption contained in… Continue Reading

Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions

Posted in Arbitration, Collective Bargaining, Duty to furnish information, Duty to provide information, Facebook, General Counsel, NLRA, NLRB, Pre-arbitration Discovery, Protected activity, Section 7, Section 8(a)(1), Section 8(a)(5), Uncategorized

Last week the NLRB issued several significant decisions.   In the press release announcing the decisions, the agency noted that most were actually issued “the week of December 10, but were issued this week following editing and formatting which is typical for the final decisions in a Member’s term.”  This is a reference to Member Hayes’… Continue Reading

NLRB Discards 50 Years Of Precedent – Dues Checkoff Clauses Now Survive Expiration Of Bargaining Agreement

Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices

Claiming that the Board “has never provided a coherent explanation” for the 50 year old rule that the obligation to continue deducting dues pursuant to a dues checkoff provision ceases upon expiration of the collective bargaining agreement, the NLRB recently announced it has overruled existing precedent.  Dues checkoff provisions now survive the expiration of an agreement… Continue Reading

Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA

Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices

An issue we have discussed previously is whether all employee action that is “concerted” is also protected by the NLRA.  We have seen that maliciously false statements made to third parties are unprotected.  But what about when employees disagree with managerial control of the operations?  How far can they press their claims?  When it comes to… Continue Reading

Oral Arguments Heard Over Validity Of Recess Appoints Of NLRB Members

Posted in NLRB, Recess appointments

In a standing-room only courtroom in Washington, D.C., the U.S. Court of Appeals for the D.C. Circuit became the second appeals court in the last week to hear oral arguments on the validity and constitutionality of the President’s January 4, 2012 appointment of three members to the NLRB during an extended Senate adjournment.  The case… Continue Reading

NLRB, Union Violated Act When Steward Invoked Company Handbook To Stop Member Complaints

Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(b)(1)(A), Uncategorized

In the last couple of years, we have seen close scrutiny of employer handbooks by the NLRB.  If the agency deems a policy, or a portion of a policy, to be something employees might reasonably construe to inhibit protected activities, it is found to be unlawful.  These types of cases are vexing. if only because… Continue Reading

Court of Appeals Reverses NLRB Finding Of No Impasse

Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices

Sometimes in negotiations the parties just cannot agree on certain items.  Such a deadlock under certain circumstances can have legal consequences under the concept of “impasse,” one of the more shadowy, hard to define issues in labor law.  A true legal impasse over an important issue can allow one party to temporarily suspend negotiations, and in… Continue Reading

NLRB Developments Post-Election – What The Future May Hold In Labor Relations

Posted in At-Will, Bargaining units, Employer policies, Facebook, General Counsel, Handbook, NLRA, NLRB, Off-duty Access, Section 7, Section 8(a)(1), Social Media Policies

Now that the election is over, one of the main questions being asked is, what next?  We recently held a Webinar entitled ”The Latest at the NLRB and Post-Election Developments” to address this question.  It seems clear that with Congress still divided that there likely will not be much in the way of legislative change.  The pressing issues… Continue Reading