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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There have been many precedent changing decisions coming from the NLRB in the last few years. Few of these changes were more hotly contested, or farther reaching, than the Board’s decision in Browning-Ferris where it altered its longstanding joint employer test. The new joint-employer test made it much more likely for a joint-employer relationship to be found to exist. The decision … Continue Reading
We recently saw interesting decisions from the NLRB including cases about the employer’s duty to provide information about tax cuts, the lawfulness of litigation holds, and the validity of decertification petitions. At the end of December, a divided NLRB took on a case involving a union’s threat to picket a work location where multiple employers are present. In IBEW Local 357 (Convention Technical … Continue Reading
Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing. Another area of complexity comes from whether a decertification petition will be processed in the face of unfair labor practice charges filed by the incumbent union. This implicates the Board’s “blocking policy,” which is a set of guidelines designed to address … Continue Reading
Last year about this time, the NLRB changed the standard for reviewing handbook rules. The new standard takes into consideration the fact there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in … Continue Reading
The NLRB recently made public its NLRB Strategic Plan FY 2019-FY2022 wherein it states it wants to reduce time to handle cases before it by 5% per year at each stage of the case processing. The Strategic Plan provides an excellent snapshot of NLRB operations (page 3) but not much can be read into, or from, this document, which is … Continue Reading
In prior posts, we have discussed how information requests made in the context of a bargaining relationship can be vexing. The standard of the employer’s obligation to provide information can be a moving target, depending on the make-up of the NLRB. For example, for a brief period of time we saw how an employer could be found to have to … Continue Reading
As we have noted at times, the human element in labor relations makes for interesting situations. One of the more interesting issues is the timeliness of representation petitions, which, despite the existence of clear rules, can still be disrupted by human action. A union, an employee or an employer can all file a representation petition with … Continue Reading
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute. In our last post, we discussed a simmering dispute over the circumstances which an NLRB member must recuse himself or herself. This issue, we’ll call it Recusalgate, has taken an interesting turn. In ADI … Continue Reading
The NLRB has been in a period of dormancy. When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years. Except for a couple of brief periods, most notably in December when then-Chairman Miscimarra departed, … Continue Reading
As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases. Many of these appear to be garden variety type cases, with a smattering of cases now dismissing the theory of a class action waiver … Continue Reading
The Department of Labor fully rescinded the 2016 changes made to the Persuader Rules. The DOL concluded that the 2016 rule changes “exceeded the authority of the Labor-Management Reporting and Disclosure Act (LMRDA)” because they “impinged on attorney-client privilege. The action rescinding the rule was announced in a July 17, 2018 News Release . In announcing the change … Continue Reading
Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, (discussed here, here, here, and here), not much of note has been happening at the Board. Indeed, there was not a full complement at the Board until April when Chairman Ring was confirmed. Two upcoming events may see … Continue Reading
One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights. NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). Some 43 years after the Supreme Court set forth the right that represented employees are entitled to union representation when facing an interview that could lead to discipline, … Continue Reading
As we previously reported here, here and here, the NLRB’s “joint employer” standard has vacillated over the last several years, and currently remains in flux. For historical reference, the NLRB expanded the scope of joint-employment in 2015 in Browning-Ferris, 362 NLRB No. 186 (2015), and then reverted to a more rigorous showing that had been … Continue Reading
The Board is now operating at a full complement and is issuing decisions on a fairly regular basis. Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing. A frequent topic of discussion here is the often blurry line between what constitutes “protected” versus … Continue Reading
By a vote of 50 to 48 the U.S. Senate confirmed Republican John Ring as a Member of the National Labor Relations Board, giving the agency a full five member complement. Member Ring, whose term expires December 16, 2022, takes the seat previously held by Chairman Miscimarra. The addition of Member Ring means, of course, that the … Continue Reading
As we have seen, there are few things that can be counted on in labor relations. Oftentimes, several experts look at the same problem and come to vastly different conclusions (here, here and here are some examples). What is (almost) guaranteed, however, is that the NLRB rarely disturbs the determinations made by an Administrative … Continue Reading
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading
As we have noted previously, the make-up of the Board currently stands at four out of five total members, divided evenly between two warring factions making it pretty much impossible to change the law which requires a majority. It also means the precedent the new General Counsel has highlighted will not be reviewed until a … Continue Reading
December saw a flurry of decisions (discussed here, here, here and here) by the NLRB as it briefly held a full complement. The Board currently has only four members and so law-changing decisions are less likely to occur until a new member is confirmed. Board cases still proceed through the courts. Sometimes, as we have seen here and here, a federal … Continue Reading
In the last few years, December has been a time of change at the NLRB. The last few Decembers have seen precedent overturned and other sweeping decisions issue from the Board. This December is no different. With Chairman Miscimarra’s term ending on December 16, a flurry of decisions issued. We saw the micro-unit, joint employer … Continue Reading
On the eve of Chairman Miscimarra’s departure, the Board has been churning out decision after decision, many of them reversing precedents from the last 8 years. Today, the NLRB, in Raytheon Network Centric Systems, 365 NLRB No. 161 (December 15, 2017), returned to the longstanding law of the NLRB that there is no duty to … Continue Reading
We have noted many times over the years how the NLRB’s zeal to review employer policies, or more correctly, fragments of employer policies, for lawfulness has led to nettlesome issues that rarely, if ever, involve actual employees. The results have been absurd and have raised an entire cottage industry of attacks on language by unions … Continue Reading
Things are moving fast and furiously at the NLRB. Last week we saw the new General Counsel issue a sweeping memo which rescinded many policy guidelines and initiatives of his predecessor and highlighted the Board precedent from the last eight years that may be overturned. This week the NLRB posted a Request For Information on its … Continue Reading
New Joint-Employer Standard Properly Developed But Improperly Applied, Rules Federal Appeals Court
NLRB Majority: Unqualified Notice to Picket Jobsite Where Neutrals Are Present Violates Act
By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized, Unfair Labor Practices
Decertification Petition Was Improperly Dismissed, NLRB Rules
Employer’s Litigation Hold Not Unlawful, NLRB Division of Advice Concludes
By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized
NLRB Issues Strategic Plan for Coming Years
Union Not Entitled to Information About How Employer Spends Money From Tax Cut, NLRB General Counsel Rules
By Mark Theodore on Posted in Advice, Duty to furnish information, NLRA, NLRB, Section 8(a)(5), Uncategorized
Employer’s Representation Petition Not Barred By Existence of Signed Contract, Divided NLRB Rules
NLRB Finds Employer Effectively Repudiated Unlawful Handbook Rule…and RecusalGate Continues
NLRB Majority Decides 50-50 Balls In Employer Favor
NLRB Rejects “Constructive Denial of Transfer” and “Threat” Theories of Unfair Labor Practice Liability
Concluding the 2016 Persuader Rule Changes “Exceeded Authority” of the LMRDA, DOL Rescinds Them
Arbitration Class Waivers, Past Practice (not established) and Skirmishing Over Information Requests All Part of Recent NLRB Action
Employee’s Failed Attempt To Secure Union Representation Sufficient Notice of Weingarten Request, Divided NLRB Rules
NLRB Considers Rulemaking to Address Hotly-Contested Joint-Employer Standard
By Mark Theodore, Joshua Fox and Dana N. Berber on Posted in Joint Employer, NLRA, NLRB, Rulemaking
Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct
Gridlock Broken: Senate Confirms John Ring as Newest Member of NLRB
By Mark Theodore on Posted in Employer policies, NLRB, Specialty Healthcare, Uncategorized
Unicorn Sighting: NLRB Overturns ALJ Credibility Determination
By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized
Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected
Turns Out Attempting To Insert New Term Into Collective Bargaining Agreement Not Agreed To In Negotiations Violates The Law…Who Knew?
NLRB Reverses Information Request Decision…After Court Reverses Board Decision
NLRB Restores Ability Of ALJs To Accept Settlement Offers Over Objection of Charging Party and General Counsel- Overrules One Year Old Precedent
By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized, Unfair Labor Practices
On A Roll: Board Finds No Bargaining Obligation Attaches to Unilateral Actions Consistent with Past Practice
By Mark Theodore and Joshua Fox on Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(5)
Handbook Wars – Common Sense Returns NLRB Overhauls Standard for Legality of Work Rules
By Mark Theodore and Joshua Fox on Posted in Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1)
