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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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
On October 23, 2020, the D.C. Circuit granted Davidson Hotel Company’s petition for review of unfair labor practices resulting from its refusal to bargain with two newly-certified bargaining units, and denied the NLRB’s cross-petition for enforcement of an order to engage in collective bargaining with those units. The Circuit also remanded the underlying unit certification … Continue Reading
The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer … Continue Reading
On November 24, 2020, the Board held that a high-level executive’s tweet violated Section 8(a)(1) of the NLRA by interfering with or restraining employees’ protected, concerted activity. In FDRLST Media, LLC, 370 NLRB No. 49 (2020), the Board reaffirmed its longstanding principle that a violation of Section 8(a)(1) does not depend on the employer’s motive … Continue Reading
As employers faced with a representation petition filed during the COVID-19 pandemic can attest, Regional Directors of the National Labor Relations Board have been incredibly reticent to hold in-person elections. Indeed, since April 1st, when the Board resumed processing representation petitions, approximately ninety percent (90%) of elections have been held by mail rather than in-person. … Continue Reading
An age old question under the National Labor Relations Act is what constitutes “picketing”? By the Supreme Court’s definition, picketing is inherently coercive and may not be directed against a neutral employer. An issue that has vexed employers for the last several years has been the use of stationary protests, such as inflatable rats and … Continue Reading
In an Advice Memorandum released Thursday, the NLRB’s Division of Advice concluded that employees who discussed an employer’s tip-pooling practices engaged in protected concerted activity, such that discharging the employees for this activity violated Section 8(a)(1) of the NLRA. Employees working at a steakhouse in New York City often complained about the restaurant’s tip-pooling system. … Continue Reading
On September 11, 2020, a three-member National Labor Relations Board panel unanimously ruled that a trade group representing sign language interpreters did not violate Section 8(a)(1) of the Act by removing its members’ posts on its closed Facebook page. The posts, made by individual members of the trade group, discussed the interpreters’ work conditions and … Continue Reading
The National Labor Relations Board recently cancelled a union election at a Las Vegas casino that suspended its operations and laid off employees amid the COVID-19 pandemic. In NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, 370 NLRB No. 11 (2020), the Board found that … Continue Reading
The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation. On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the agency’s internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the … Continue Reading
In another long-anticipated decision, on July 21, 2020, in General Motors LLC, 369 NLRB No. 127 (2020), the Board replaced three context-specific rules for determining whether certain abusive conduct committed by employees is protected under Section 7 of the National Labor Relations Act (the “Act”) with the Wright Line standard that is traditionally used to … Continue Reading
On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices. While a majority of the Memoranda were drafted within the past month, a few were originally issued months or years ago. Advice is the agency’s internal think tank and the … Continue Reading
After a brief delay where the NLRB suspended all representation elections from March 19 through April 6, 2020 (see here and here), NLRB Regional Directors have since largely required elections to be held via mail ballot to curb the spread of COVID-19. Earlier this week, the Office of the General Counsel of the NLRB published … Continue Reading
In late May, on the eve of the effective date of the NLRB’s sweeping changes to the election process, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that certain of the new rules were substantive—not procedural—in nature, and were improperly implemented without affording the public an opportunity to … Continue Reading
In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA. The Board held, … Continue Reading
We have seen this movie before. NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board. Then the current iteration of the Board reverses its own precedent and sides with the D.C. Circuit. This situation occurred recently with regard to whether the “clear and … Continue Reading
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 Mark Theodore, Joshua Fox and Makenzie D. Way 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 Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in Uncategorized
NLRB: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity
By Mark Theodore, Joshua Fox and Scott Tan on Posted in Uncategorized
D.C. Circuit Remands Hotel Certification Decision and Reminds Board to Explain Its Reasoning
By Mark Theodore, Joshua Fox and Samantha Shear on Posted in Uncategorized
Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB: Employer Tweet Unlawfully Restrained Protected Activity
By Mark Theodore, Joshua Fox and Scott Tan on Posted in Uncategorized
NLRB Establishes Pathway to Holding More In-Person Manual-Ballot Elections during the COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Yonatan Grossman-Boder on Posted in Uncategorized
NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!
By Mark Theodore, Joshua Fox and Rachel Therese Gulotta on Posted in Uncategorized
NLRB Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates Section 8(a)(1)
By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in Advice, NLRA, NLRB, Protected activity, Section 8(a)(1)
NLRB: Members Of Trade Group Are Not “Employees” Covered By The NLRA
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, Section 7
No Reasonable Expectation of Recall? No Election: Board Cancels Union Election at Casino Closed During COVID-19
By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Coronavirus, COVID-19, NLRB Election Rules, Uncategorized
NLRB Division of Advice Dishes Some Guidance With Respect to COVID-Related ULP Charges
By Mark Theodore, Joshua Fox and Abigail Rosenblum on Posted in Advice, Coronavirus, COVID-19, NLRB, Uncategorized
NLRB Upends Context-Specific Tests for Profane Conduct, Folding Such Discipline Into Traditional Motivation Tests For Evaluating Lawfulness
By Mark Theodore, Joshua Fox and Caroline Guensberg on Posted in Uncategorized
NLRB Division of Advice Releases Deluge of Advice Memoranda Discussing COVID-Related ULP Charges, Confidentiality Rules, Information Requests, and Other Topics
By Mark Theodore, Joshua Fox, Rachel Therese Gulotta, Elizabeth Dailey and Caroline Guensberg on Posted in Uncategorized
NLRB General Counsel Announces “Suggested” Protocols for Conducting Manual, In-Person Elections Amidst the COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
Update: Federal Judge Amends Prior Order Concerning 2019 Election Rules, Affording Deference to the NLRB, but Appeal to D.C. Circuit Remains
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements
By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in Uncategorized
NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions
By Mark Theodore, Joshua Fox and Eric Novak on Posted in NLRA, NLRB, Section 7
