Mark Theodore
Partner
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.
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 nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.
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In a 6–3 decision, the U.S. Supreme Court held on June 23, 2021 that a California regulation granting labor organizers the “right to take access” to agricultural employers’ private property to solicit union support violated the Takings Clause of the U.S. Constitution. See Cedar Point Nursery et al. v. Hassid et al., USSC Case No. … Continue Reading
Since the onset of the COVID-19 pandemic, mail-ballot elections—rather than manual, in-person elections, have been mandatory for most NLRB representation elections. The NLRB’s recent ruling, on June 9, 2021, in Professional Transportation Inc., 370 NLRB 132 (2021), provided important guidance regarding when solicitation in the context of such elections constitutes objectionable conduct, such that it … Continue Reading
On Wednesday, May 26, 2021, President Biden nominated Gwynne Wilcox to fill the last remaining vacancy on the National Labor Relations Board (“Board”). If confirmed by the Senate, Wilcox would be the second Democrat on the Board, joining Board Chair Lauren McFerran (who had been a member of the Board since 2014, and was appointed … Continue Reading
In AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their co-workers, managers or third-parties, even though its application in one particular circumstance was found unlawful. Notwithstanding the fact that the … Continue Reading
The Coronavirus pandemic has spawned a lot of questions—and a lot of headaches—for employers, who within the past year have needed to adapt to rapidly changing health, regulatory, and technological landscapes. With the long-awaited arrival of a vaccine comes even more questions for employers: Can I require my employees to get vaccinated? Can I require … Continue Reading
In Universal Health Services, Inc., 370 N.L.R.B. No. 118 (April 30, 2021), the Board dismissed a complaint alleging that an employer’s bargaining proposals seeking significant concessions violated the duty to bargain in good faith. Notably, the Board found that even when faced with extreme proposals, a union must still “test” the employer’s willingness to make … Continue Reading
Over the past few years, the National Labor Relations Board has frequently weighed in on employer’s workplace and employee handbook policies, examining whether an employer’s policy impacts employees’ rights under Section 7 of the National Labor Relations Act. Employers received a needed dose of clarity in Boeing Co., 365 NLRB No. 154 (2017), where the … Continue Reading
Though the National Labor Relations Board has established a pathway for holding in-person union elections, mail-ballot elections continue to be the norm in many Regions across the country. Of course, the more mail-ballot elections that occur, the more unique issues arise. In XPO Logistics Freight, Inc., 370 NLRB No. 99 (2021), the Board weighed in … Continue Reading
In a recent decision by the NLRB, the Board upheld the lawfulness, in part, of an arbitration agreement that required employees to maintain the confidentiality of the arbitration proceedings, including the discovery process and the hearing. Dish Network, LLC, 370 NLRB No. 97 (March 18, 2021). However, Chairman McFerran’s considerable dissent likely signals that the … Continue Reading
As we recently foreshadowed, given the slim Democratic margins in the House and Senate, and a Democratic President, there is the potential for the most significant amendments to the National Labor Relations Act (“NLRA” or “Act”) in its eighty-six (86) year history. On Tuesday night, March 9, 2021, the U.S. House of Representatives took the … Continue Reading
It is an unfair labor practice for an employer to retaliate against (1) union supporters pursuant to Section 8(a)(3) of the National Labor Relations Act (the “Act”), and (2) employees for filing a complaint with the National Labor Relations Board, testifying in a Board proceeding, or otherwise utilizing the Board’s processes, under Section 8(a)(4). Both … Continue Reading
President Biden nominated Jennifer Abruzzo, Special Counsel for Strategic Initiatives for the Communications Workers of America, to be General Counsel of the National Labor Relations Board. Abruzzo was a Board veteran with more than two decades at the agency before becoming the union’s point person on NLRB issues. She was NLRB Deputy General Counsel and … Continue Reading
When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers. In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021), the National Labor Relations Board (the “Board” or “NLRB”) found that workers employed at a Phoenix newspaper in a fellowship program … Continue Reading
As we recently reported, National Labor Relations Board Acting General Counsel Peter Sung Ohr recently gave us a peek behind the curtain at his prosecutorial priorities as General Counsel when he rolled back a number of General Counsel Memoranda issued by his predecessor, Peter Robb. Consistent with that roll back, Ohr recently directed the agency … Continue Reading
On February 1, National Labor Relations Board (“NLRB”) Acting General Counsel Peter Sung Ohr rescinded a slew of General Counsel Memos issued by his predecessor, Peter Robb. On February 2, Ohr continued his actions by rolling back two Operations Management memos that were also issued during Robb’s term. Ohr’s actions come one week after he … Continue Reading
President Biden named Peter Sung Ohr as Acting General Counsel of the National Labor Relations Board today. Ohr is a career employee of the NLRB, having served as a Field Attorney, Deputy Assistant General Counsel in the NLRB’s Division of Operations-Management, and as Regional Director of the Board’s Chicago Regional Office. Biden’s action comes after … Continue Reading
One day after a standoff between President Biden and NLRB General Counsel Peter Robb resulted in his unprecedented termination, President Biden fired the NLRB’s second-ranked attorney, NLRB Deputy General Counsel Alice Stock, according to a Bloomberg report. Stock would have served as Acting NLRB General Counsel after Robb’s termination on January 20th. As of this … Continue Reading
*** UPDATE: On his first day in office, President Biden fired NLRB General Counsel Peter Robb, according to a report by Bloomberg News. This marks the first time in the history of the NLRB that a President has terminated the agency’s General Counsel before the expiration of their term. As we reported earlier below, President … Continue Reading
On January 14, 2021, the NLRB issued a decision in Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 370 NLRB No. 71. The decision involved the issue of whether a term of employment contained in a collective bargaining agreement continues after the expiration of the contract. This issue has been vexing for employers … Continue Reading
As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers’ handbook policies in relation to employees’ Section 7 rights, when it issued its decision in The Boeing Company, 365 NLRB No. 154 (2017). Boeing established a balancing test that takes into account the employer’s … Continue Reading
The NLRB rang in the New Year by examining what constitutes an impression of unlawful surveillance. In Dignity Health d/b/a Mercy Gilbert Medical Center, 370 NLRB No. 67 (January 6, 2021), the Board reaffirmed helpful guidance for employers regarding the dos and don’ts in the context of union organizing campaigns. Specifically, the Board held that … Continue Reading
In adopting the ALJ’s Recommended Order in S&S Enterprises, LLC d/b/a Appalachian Heating, Case No. 09-CA-235304, the NLRB found that a leaflet distributed by the employer during union organizing efforts, which stated that it is against federal law for a labor union to threaten employees, did not violate the NLRA because it did not constitute … Continue Reading
When an employee is disciplined and then claims the employer acted on account of union animus in violation of Section 8(a)(3) of the Act, evidence to support such a claim either can be proffered through direct evidence, such as “smoking gun”-type statements made by a supervisor or top-management that the discipline was implemented due to … Continue Reading
As we have often discussed, there is a fine line between protected and unprotected activity. Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers. On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of … Continue Reading
Access Denied: Supreme Court Finds California Regulation Permitting Union Access to Employer Property Constitutes An Unconstitutional Taking
By Mark Theodore, Joshua Fox and Ross Evans on Posted in Uncategorized
Hands Off My Ballot: NLRB Finds that Solicitation of Mail-Ballots is Objectionable Conduct That May Warrant Setting Aside an Election
By Mark Theodore, Joshua Fox and Julia Hollreiser on Posted in Uncategorized
BREAKING: President Biden Nominates Union-Side Attorney Gwynne Wilcox to Fill NLRB Seat
By Mark Theodore, Joshua Fox and H. Ren Morris on Posted in Uncategorized
NLRB Majority: Employer May Continue “No Recording” Rule, Even After Unlawfully Applying it to Single Employee
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in Uncategorized
Guidance: Can Employers of Unionized Workers Require the COVID Vaccine?
By Mark Theodore, Elizabeth Dailey and Dylan K. Tedford on Posted in COVID-19
NLRB: Employer’s “Hard-Bargaining” Proposals—By Themselves—Did Not Violate Duty to Bargain in Good Faith
By Mark Theodore, Joshua Fox and Scott Tan on Posted in Uncategorized
Employer’s Policies On Blogging, Solicitation and E-Mail Signature Blocks Lawful, NLRB Rules (For Now, Anyway)
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
Unsigned and Torn Up: NLRB Weighs In On Issues Arising During Mail-Ballot Elections
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
Requiring Employees to Maintain the Confidentiality of Arbitration Proceedings Held to be Lawful Under the NLRA…For Now
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA
Once Again, the House Passes “Protect the Right to Organize Act,” Sending Bill to Senate
By Mark Theodore, Joshua Fox and Eric Novak on Posted in Biden Administration Coverage
NLRB: Initial Burden of Union Animus Met Largely by Timing of Employer’s Discharge of Employee
By Joshua Fox, Mark Theodore and Michelle Lappen on Posted in NLRB
BREAKING: President Biden Nominates Former Deputy General Counsel Jennifer Abruzzo for NLRB General Counsel
By Mark Theodore, Joshua Fox and Michelle Lappen on Posted in NLRB
No “Finite Fellows” in the Bargaining Unit – the Board Weighs in on Temporary Workers
By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Bargaining units, NLRB, NLRB Election Rules
NLRB Acting General Counsel Strikes Again, Directs Agency to Withdraw Complaints Attacking Neutrality Agreements
By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in NLRB
NLRB Acting General Counsel Rolls Back Guidance from Prior Administration
By Mark Theodore, Michael Lebowich, Joshua Fox and Alex Downie on Posted in NLRB
After Unprecedented Firings of General Counsel and Deputy General Counsel, President Biden Names Peter Sung Ohr Acting General Counsel of the NLRB
By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear and Heylee Bernstein on Posted in Biden Administration Coverage, General Counsel, NLRB
BREAKING: President Biden Continues NLRB Shake-Up By Firing Acting NLRB GC
By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear and Heylee Bernstein on Posted in Biden Administration Coverage, General Counsel, NLRB
Breaking: On First Day in Office, President Biden Shakes Up NLRB By Firing GC and Appointing New Chair
By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear and Heylee Bernstein on Posted in Biden Administration Coverage, General Counsel, NLRB
NLRB Finds Employer Acted Lawfully by Paying Statutory Minimum Christmas Bonus, Rejecting Unilateral Change and CBA Modification Claims
By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in NLRA, NLRB, Section 8(a)(5)
NLRB Finds Social Media Policies Lawful, Sheds Light on Impact of Boeing
By Makenzie D. Way, Mark Theodore and Joshua Fox on Posted in Uncategorized
Employer Leaves Lasting Impression…of Unlawful Surveillance
By Mark Theodore, Joshua Fox and Makenzie D. Way on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
NLRB Holds that Leaflet Outlining Consequences for Threatening Workers Is Not Unlawful
By Joshua Fox, Jacob P. Tucker and Mark Theodore on Posted in Uncategorized
NLRB: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line
By Elizabeth Dailey, Joshua Fox and Mark Theodore on Posted in Uncategorized
NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity
By Joshua Fox, Mark Theodore and Scott Tan on Posted in Uncategorized
