The fight over the Department of Labor’s attempt to “clarify” the 50 plus year interpretation of the persuader rules may be coming to an end.  After its implementation, the persuader rule was immediately challenged in litigation in Minnesota and Texas.  Late last year, the U.S. District Court in Texas issued a national injunction halting the enforcement of the rule pending the outcome of the litigation.    The government appealed and before the appeal could be heard the administration changed.

Recent court filings demonstrate the new administration may be rethinking whether it wants to continue trying to enforce the new persuader rules or perhaps even abandon the rule altogether.  In the Texas litigation, the Department of Justice filed an unopposed Motion for Extension of Time to file a response to the Court on the grounds that, “Acting Solicitor General, the Civil Division of the Department of Justice, and the new leadership at the Department of Labor are engaged in ongoing consultations regarding this litigation.  The government requires additional time to complete those consultations.”  A similar document in the form of a Joint Status Report was filed in the Minnesota litigation.

It is very likely the new administration is considering what to do about the persuader rule and the ongoing litigation; we may see a change very soon.  We will keep you posted on further developments.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

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.