This week, in an expected decision, the National Labor Relations Board (“NLRB” or “Board”) reinstated its prior “clear and unmistakable” waiver standard—a standard that has been much criticized by the courts—for determining when an employer’s unilateral change to terms and conditions of employment violates the National Labor Relations Act (“NLRA”
Mark Theodore
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. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.
Some recent highlights of his career include:
- Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
- Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act. T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
- Represented major utility in NLRB proceedings related to organizing of planners. Secured utility-wide bargaining unit. Bargained on behalf of grocery chain. After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
- Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.
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 a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.
In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.
Two Blockbuster U.S. Supreme Court Decisions May Spell End of NLRB’s Expansion of Reach of NLRA as Well as How Agency Prosecutes Cases
The U.S. Supreme Court issued two blockbuster decisions this week, both of which likely will curtail the ability of federal agencies, including the NLRB, to prosecute cases and expand the law.
In a 6-3 decision announced Thursday in Securities and Exchange Commission v. Jarkesy et al., U.S., No. 22-859 (Jun.
Compete All You Want: ALJ Strikes Down Non-Compete Agreement, Setting Up NLRB Review
OSHA Issues Final Rule Allowing Employee Third-Party Representatives to Enter Workplace – Including Labor Unions
On March 29, 2024, the Department of Labor Occupational Safety and Health Administration (“OSHA”) released a final rule amending the Occupational Safety and Health Act of 1970 (“OSH Act”), clarifying who can serve as an employee representative to accompany the OSHA Compliance Safety and Health Officer (“CSHO”) during physical workplace…
Appellate Court Rejects NLRB’s Findings in Employer Surveillance Case as “Nonsense”
Declaring the NLRB’s rationale to be “nonsense,” on March 26, 2024, a unanimous three-judge panel for the United States Court of Appeals for the District of Columbia in Stern Produce Company Inc v. NLRB, refused to enforce the agency’s finding of unfair labor practices.
The Court held that the…
That Was Fast: Judge Orders Cannabis Company to Recognize and Bargain with Union Under “Cemex”
As we recently discussed, the National Labor Relation Board’s (“NLRB”) monumental ruling in Cemex Construction Materials Pacific, LLC, 327 NLRB No. 130 (2023), is going to have a significant impact on the manner in which employers may respond to union organizing efforts. As the Board held in…
Not A Clean Break: Cautionary Tale for Employers Looking To Close Plants
In a very active end of summer for labor law, the National Labor Relations Board (“Board”) ruled in a 2-1 decision, in Quickway Transportation, Inc., 372 NLRB No. 127, that a company’s closure of a terminal where its drivers were unionized violated the National Labor Relations Act (“NLRA”).
NLRB Reinvigorates 1949 Joy Silk Doctrine Giving Great Weight To Demands For Recognition
As we previously reported in April 2022, the National Labor Relations Board (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, asked the Board to revive the Joy Silk doctrine (which was rejected in 1969) and require employers to recognize unions without a secret ballot election.
On August 25, 2023, the Board…