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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The National Labor Relations Board recently held that a group of employees who were advocating on behalf of unpaid interns were not engaged in protected activity because the interns were not “employees” as that term is defined in Section 2(3) of the National Labor Relations Act. In so doing, the Board reaffirmed its longstanding precedent … Continue Reading
On October 28, 2019, the Ninth Circuit, following in the footsteps of the D.C. Circuit and the Second Circuit, affirmed an order entered by the NLRB confirming that prohibitions on secondary boycotts under Section 8(b)(4)(i)(B) of the NLRA do not violate the First Amendment of the United States Constitution. Nat’l Labor Relations Bd. v. Int’l … Continue Reading
The NLRB recently reiterated its position that the agency should not be so quick to dismiss petitions filed by employees seeking to decertify a union. The Board, in a 3-1 decision, held that if a petition for decertification is properly filed prior to the employer entering into an agreement settling unfair labor practice charges in … Continue Reading
The NLRB continues to issue decisions on a variety of interesting issues. On October 10, the Board held, in LA Specialty Produce Co., 368 NLRB No. 93 (Oct. 10, 2019), that an employer’s strong confidentiality protections and limited media availability rules were lawful, and in so doing, clarified the analysis under the newly-issued Boeing standard, … Continue Reading
As we near the end of the agency’s fiscal year on September 30, the NLRB is churning out many significant decisions. On September 10, the Board issued a sweeping decision concerning an issue that has divided the NLRB and D.C. Circuit Court of Appeals (as well as the First and Seventh Circuits, and partially, the … Continue Reading
While much of the country spent the last week of summer enjoying the last few days of sun, the National Labor Relations Board spent the week before its eponymous three-day weekend churning out a couple of important decisions. A brief round-up of the Board’s recent activity in areas related to the intersection of Section 7 … Continue Reading
Summer is winding down but the NLRB continues to be a source of vigorous activity. The Board recently issued a sweeping decision regarding the lawfulness of arbitration agreements. Also, the Board announced its intention to change the so-called ambush election rules. Of course, the Board continues to issue decisions on a regular basis. Discussion of some of … Continue Reading
On August 14, 2019, the NLRB issued its first decision addressing employer conduct related to mandatory arbitration agreements and Section 7 activity since the Supreme Court decided Epic Systems Corp v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018). In Epic Systems (discussed more fully here), the Supreme Court held that agreements between employers and … Continue Reading
The National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) on Monday, August 12, 2019, proposing three amendments to its current rules and regulations aimed at addressing representation election procedures – with potentially more to come. The NLRB made sweeping changes to the election procedures through rulemaking in 2014, which have been criticized as … Continue Reading
This summer has been punctuated by walkouts. We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and generally speaking, employees are protected by the NLRA when the walkout is over … Continue Reading
On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at the conclusion of a contract term. In Johnson Controls, Inc., 368 NLRB No. 20 (2019), the Board significantly streamlined the … Continue Reading
Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises. In UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the NLRB was confronted with the findings that an employer committed unfair … Continue Reading
Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite. Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process. A common situation arises when an employer makes changes in the workplace, whether it is … Continue Reading
The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace. We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants. An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign. When there is an allegation of wrongdoing, the Board evaluates such employer … Continue Reading
In an Advice Memorandum dated April 16, 2019, but released on May 14, 2019, the NLRB’s General Counsel staked out a position in one of the most contentious and influential questions in labor and employment law today: Whether or not Uber drivers – and by implication, potentially, other “gig economy” workers – are statutory employees … Continue Reading
Information requests in the realm of labor relations are simple in theory but can be complicated in practice. We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so. We also have seen that it almost never is a good idea for a party to just deny a request for relevant information … Continue Reading
During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act. These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that … Continue Reading
An employer’s duty to provide information to the union representing its employees is a frequent of topic of interest to labor relations practitioners because it is very easy to violate the law. For example, an employer’s assertion that the information is confidential is not enough to justify failing to turn over the information. And, for a brief period of time … Continue Reading
How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion. While the actual case law analyzing the coerciveness of an employer statement has not changed, the lawfulness of the statement often depends on the make-up of the Board at the … Continue Reading
On February 4, the NLRB granted United Federation of Teachers, Local 2, AFT, AFL-CIO’s (the “Union”) request for review of the Regional Director’s Decision and Direction of Election concerning a decertification petition filed by several teachers at a charter school. In so doing, the Board invited filing of briefs regarding whether the Board should decline … Continue Reading
The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted activity. In order to determine whether an employee is, in fact, engaged in protected concerted activity, it is necessary to … Continue Reading
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
Unpaid Interns are Not Statutory Employees, NLRB Concludes
By Mark Theodore, Joshua Fox and Samantha Shear on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
No, Unions Do Not Have A Free Speech Right To Engage In Unlawful Secondary Boycott Activity, Federal Appeals Court Rules
By Mark Theodore, Joshua Fox and Annabel Pollioni on Posted in NLRA, NLRB, Secondary boycott, Section 8(b)(4)(i)(B)
NLRB Continues to Aid Workers in Ousting Unions
By Mark Theodore and Annabel Pollioni on Posted in Collective Bargaining, Decertification elections, NLRA, NLRB, Section 7, Unfair Labor Practices
Moment of Clarity? NLRB Upholds Info-Sharing and Media Contact Rules, Clarifies Boeing Standard Applicable to Employer Handbook Policies
By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(3)
NLRB Dumps Longstanding “Clear and Unmistakable Waiver” Standard for More Employer-Friendly “Contract Coverage” Test
By Mark Theodore and Joshua Fox on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Unfair Labor Practices
National Labor Relations Board: Labor Day Roundup
NLRB: Employer Did Not Unlawfully Discontinue Christmas Bonus
NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights
By Mark Theodore, Michael Lebowich, Steven Porzio, Joshua Fox and Laura Franks on Posted in Arbitration, NLRA, NLRB, Section 7
NLRB Announces Three Proposed Rulemaking Amendments Aimed at Overhauling Union Election Procedures – With More to Come!
Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority
By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Strikes
Independence Day Comes Early For Employees Seeking To Shed Union Representation
By Mark Theodore and Joshua Fox on Posted in Bargaining units, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices
Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules
By Mark Theodore on Posted in NLRA, NLRB, Section 8(a)(1), Solicitation, Uncategorized
Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules
By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Uncategorized
Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules
NLRB Office of the General Counsel Advises that Uber Drivers Are Not Statutory “Employees”
By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in Advice, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(2), Section 8(a)(5)
NLRB: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn
NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act
NLRB Majority: Employer Not Required To Disclose Identity Of Bargaining Unit Informant
Unanimous NLRB: Context Matters – Asking Employee Whether He Saw Union Organizer Not Unlawful Interrogation
By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized
Are Charter Schools Covered by the National Labor Relations Act? NLRB to Reconsider Its Jurisdiction over Charter Schools
By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Bargaining units, Decertification elections, NLRA, NLRB, Section 7
Employee’s Complaint About Low Tippers Not Protected Concerted Activity, NLRB Majority Rules
By Mark Theodore on Posted in NLRA, NLRB, Protected activity, Section 7, Uncategorized, Unfair Labor Practices
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
