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 NLRB continues to operate during the novel coronavirus crisis. Regional offices are largely working remotely as is the rest of the country. The Board itself continues to issue decisions, albeit at a slower pace than usual. On February 4, 2019, the NLRB invited interested parties to file briefs addressing whether the agency should decline … Continue Reading
When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter. And, so does context. Under NLRB case law, the actual employer statements are evaluated as well as the overall context the words were uttered to determine whether there exists coercion. Recently, the NLRB addressed an unusual case where an … Continue Reading
Applying the facially neutral work rule test laid out in Boeing (see here), the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i) cell phones in commercial vehicles, (ii) the company email server for purposes not related to work, and (iii) the disclosure … Continue Reading
On February 7, 2020 the National Labor Relations Board (“NLRB”) sued the State of Oregon in federal court seeking a declaratory judgement to invalidate a state statute that protects employees who refuse to attend lawful compulsory meetings held by employers during organizing campaigns from adverse employment action. These meetings, pejoratively referred to as “captive audience” … Continue Reading
In its January 31, 2020 decision in Phillips 66, 369 NLRB No. 13 (January 31, 2020) the Board reversed a number of findings of unfair labor practices found by an Administrative Law Judge related to the employer’s conduct during organizing and subsequent bargaining. Background In November 2011, the union filed a petition to represent the … Continue Reading
On Thursday, February 6, 2020 the U.S. House of Representatives passed the Protecting the Right to Organize Act, also known as the “PRO Act”. The legislation (which can be viewed here), passed mostly along party lines, would provide sweeping changes to the NLRA that would enhance greatly the ability of unions to organize employees and … Continue Reading
Similar to other disagreements between the NLRB and D.C. Circuit (see here for a recent example ), a tension developed during the last several years regarding the appropriate standard to determine whether teachers at religious schools are covered by the NLRA and within the Board’s jurisdiction, or whether the Religion Clauses of the First Amendment … Continue Reading
In prior posts, we’ve discussed how information requests in the context of labor relations can be deceptively complex to comply with for employers. We’ve seen how an employer’s assertion of confidentiality, standing alone, is not enough to justify denying a request. Sometimes, albeit rarely, the NLRB has determined the subject of some requested information is … Continue Reading
In the field of labor relations, there exist some rare occurrences, things that happen so seldom that it seems as if they are impossible. As we’ve previously discussed, one such “unicorn sighting” is the NLRB overturning an Administrative Law Judge’s credibility determinations. Another event that falls in the category of “super rare” is a court … Continue Reading
Shamrock Foods Company, 369 N.L.R.B. No. 5 (January 7, 2020) is the latest in the National Labor Relations Board’s series of employer-friendly decisions. In Shamrock Foods, the Board held that an employer did not violate Sections 8(a)(3) and (1) of the National Labor Relations Act by offering and entering into a settlement agreement with an … Continue Reading
In yet another end-of-2019 decision overruling significant NLRA precedent, the Board reverted to the less stringent Spielberg / Olin standard for determining whether to defer to arbitration decisions in the context of Section 8(a)(1) and (3) unfair labor practice cases. See United Parcel Service, Inc., 369 NLRB 1 (2019). The Board issued this decision unanimously, … Continue Reading
As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion. Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), held that an employer’s confidentiality restrictions for information relating to … Continue Reading
Mid-December is always a time where one can expect significant decisions to issue from the NLRB. In recent years, we saw the Board, among other decisions, abandon the much criticized “micro unit” standard and the equally criticized handbook violation standard. December is also one of the main times of year that a Board Member’s term … Continue Reading
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
NLRB Decides to Assert Jurisdiction Over Charter Schools On A Case By Case Basis
By Mark Theodore, Joshua Fox and Samantha Shear on Posted in NLRA, NLRB
Employer’s Poll of Workforce Not Unlawful Mass Interrogation, NLRB Rules
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
Applying the Boeing Standard, NLRB Upholds Employer’s Policies Restricting Cell Phone Use, Non-Work Email Use and Disclosure of Confidential Information
By Mark Theodore, Joshua Fox and Rachel Therese Gulotta on Posted in Confidentiality, Handbook, NLRA, NLRB, Section 7
NLRB Sues Oregon Seeking To Invalidate State Law Prohibiting “Captive Audience” Meetings
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, NLRB Election Rules, Preemption
NLRB Upholds Employer’s Bargaining And Demotions Post-Impasse As Lawful
By Mark Theodore and Rachel Therese Gulotta on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5)
Congress Passes Labor-Friendly “PRO Act”
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, Protected activity, Section 7
D.C. Circuit Vacates NLRB Decision, Reinforcing Board’s Limited Jurisdiction over Religious Schools
By Mark Theodore and Joshua Fox on Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(5)
Union’s Failure to Provide Factual Reasons as to Why It Needed Certain Information Privileged Employer to Deny Request, NLRB Rules
By Mark Theodore and Scott Tan on Posted in NLRA, NLRB, Section 8(a)(5)
Federal Appeals Court Vacates Arbitration Award, Concluding Arbitrator Issued Own “Brand of Industrial Justice”
By Mark Theodore and Eric Novak on Posted in Arbitration
NLRB: Outsized Payment to Union Supporter to Waive Reinstatement in Board Settlement Not Unlawful Bribe
By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB, Section 8(a)(3)
NLRB Gives End of Year Gift for Employers, Restores Longstanding Standard for Deferring to Arbitral Decisions
Busy Board Returns to Rule Permitting Workplace Confidentiality Restrictions during an Employer’s Investigation
NLRB Restores 50+ Year-Old Precedent: Employers (Once Again) May Unilaterally Stop Deducting Union Dues Upon Contract Expiration
By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(3)
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
