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 (“Board”) issued a ruling on February 21, 2023, in McLaren Macomb, 372 NLRB No. 58 (2023), which in effect finds broad confidentiality and non-disparagement clauses in severance agreements violate Section 8(a)(1) of the National Labor Relations Act (“Act”). The decision applies to all employers regardless of union status. However, the … Continue Reading
A divided three-judge panel of the D.C. Circuit Court of Appeals partially affirmed a federal district court’s decision to vacate part of a rule issued by the National Labor Relations Board (the “Board”) in 2019 that eliminated several “quickie” representation election procedures established by a 2014 rule (the “2014 rule”). In 2019, the Board issued … Continue Reading
National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo stated over a year ago that 10(j) injunctions in NLRB charges were “one of the most important tools available to effectively enforce the [National Labor Relations] Act.” GC Memorandum 21-05. Today, the GC has issued another memorandum on the topic of 10(j) injunctions, GC Memorandum … Continue Reading
For more than five decades, employers could cease deduction of dues at the expiration of a collective bargaining agreement as a legitimate economic weapon. It was only recently that, as part of the constant shifting of precedent at the Board, the decades-old rule has been disturbed. On September 30, 2022, the National Labor Relations Board … Continue Reading
Last week, the Third Circuit reversed a National Labor Relations Board (“NLRB”) decision finding that FDRLST Media, publisher of online news magazine The Federalist, unlawfully threatened its employees when its Executive Officer tweeted about sending employees “to the salt mine” if they tried to form a union. In FDRLST Media, LLC v. NLRB, the Third … Continue Reading
For decades, employers had been free to gather employees to discuss – in a non-coercive manner – the employer’s views on unionization, and had been free to share with employees what employees’ rights were with respect to the same. Earlier today, the NLRB General Counsel issued a memorandum declaring her intent to attempt to overturn … Continue Reading
On March 30, 2022, three judge panel of the Third Circuit Court of Appeals unanimously overruled prior precedent allowing “implied” contracts to survive the expiration of a written agreement. The instant panel held, instead, that “implied” contract provisions that “have no durational limit of their own” are “governed by the general durational clauses of the … Continue Reading
As foreshadowed by the NLRB General Counsel’s August 2021 Advice Memorandum (which we discussed here), the vacillating standard for the legality of employer handbooks and policies and confidentiality requirements during open employer-investigations have been ripe for reversal by the NLRB. On March 7, 2022, in response to the NLRB’s January 6, 2022 notice and invitation … Continue Reading
On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA. It remains to be seen exactly what the contours of the new joint-employer rule would be, although it has been widely predicted … Continue Reading
The ability to form smaller bargaining units by breaking up larger aspects of an employer’s organization—sometimes called “micro-units”—is generally seen as an effort to enhance the ability of unions to gain entry into an employer by making it easier to organize. Those opposed to the practice, including both employers and trade groups, contend that carving … Continue Reading
Google recently suffered a blow in its ongoing National Labor Relations Board litigation, when an Administrative Law Judge appointed to rule on a discovery dispute ordered the Silicon Valley company to turn over the lion’s share of certain documents subpoenaed by former Google employees. Discovery issues have become more prevalent in NLRB litigation as massive … Continue Reading
On November 10, 2021, the National Labor Relations Board announced that it is seeking public input to address whether the Board should award consequential damages to make employees whole for economic losses and under what circumstances. See Thyrv, Inc. 371 NLRB No. 37 (2021). The Board’s traditional remedy for unlawful layoffs or terminations requires that … Continue Reading
In a 6–3 decision, the U.S. Supreme Court held on June 23, 2021 that a California regulation granting labor organizers the “right to take access” to agricultural employers’ private property to solicit union support violated the Takings Clause of the U.S. Constitution. See Cedar Point Nursery et al. v. Hassid et al., USSC Case No. … Continue Reading
Since the onset of the COVID-19 pandemic, mail-ballot elections—rather than manual, in-person elections, have been mandatory for most NLRB representation elections. The NLRB’s recent ruling, on June 9, 2021, in Professional Transportation Inc., 370 NLRB 132 (2021), provided important guidance regarding when solicitation in the context of such elections constitutes objectionable conduct, such that it … Continue Reading
On Wednesday, May 26, 2021, President Biden nominated Gwynne Wilcox to fill the last remaining vacancy on the National Labor Relations Board (“Board”). If confirmed by the Senate, Wilcox would be the second Democrat on the Board, joining Board Chair Lauren McFerran (who had been a member of the Board since 2014, and was appointed … Continue Reading
In AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their co-workers, managers or third-parties, even though its application in one particular circumstance was found unlawful. Notwithstanding the fact that the … Continue Reading
The Coronavirus pandemic has spawned a lot of questions—and a lot of headaches—for employers, who within the past year have needed to adapt to rapidly changing health, regulatory, and technological landscapes. With the long-awaited arrival of a vaccine comes even more questions for employers: Can I require my employees to get vaccinated? Can I require … Continue Reading
In Universal Health Services, Inc., 370 N.L.R.B. No. 118 (April 30, 2021), the Board dismissed a complaint alleging that an employer’s bargaining proposals seeking significant concessions violated the duty to bargain in good faith. Notably, the Board found that even when faced with extreme proposals, a union must still “test” the employer’s willingness to make … Continue Reading
Over the past few years, the National Labor Relations Board has frequently weighed in on employer’s workplace and employee handbook policies, examining whether an employer’s policy impacts employees’ rights under Section 7 of the National Labor Relations Act. Employers received a needed dose of clarity in Boeing Co., 365 NLRB No. 154 (2017), where the … Continue Reading
Though the National Labor Relations Board has established a pathway for holding in-person union elections, mail-ballot elections continue to be the norm in many Regions across the country. Of course, the more mail-ballot elections that occur, the more unique issues arise. In XPO Logistics Freight, Inc., 370 NLRB No. 99 (2021), the Board weighed in … Continue Reading
In a recent decision by the NLRB, the Board upheld the lawfulness, in part, of an arbitration agreement that required employees to maintain the confidentiality of the arbitration proceedings, including the discovery process and the hearing. Dish Network, LLC, 370 NLRB No. 97 (March 18, 2021). However, Chairman McFerran’s considerable dissent likely signals that the … Continue Reading
As we recently foreshadowed, given the slim Democratic margins in the House and Senate, and a Democratic President, there is the potential for the most significant amendments to the National Labor Relations Act (“NLRA” or “Act”) in its eighty-six (86) year history. On Tuesday night, March 9, 2021, the U.S. House of Representatives took the … Continue Reading
It is an unfair labor practice for an employer to retaliate against (1) union supporters pursuant to Section 8(a)(3) of the National Labor Relations Act (the “Act”), and (2) employees for filing a complaint with the National Labor Relations Board, testifying in a Board proceeding, or otherwise utilizing the Board’s processes, under Section 8(a)(4). Both … Continue Reading
President Biden nominated Jennifer Abruzzo, Special Counsel for Strategic Initiatives for the Communications Workers of America, to be General Counsel of the National Labor Relations Board. Abruzzo was a Board veteran with more than two decades at the agency before becoming the union’s point person on NLRB issues. She was NLRB Deputy General Counsel and … Continue Reading
Drafter Beware: NLRB Finds That Employers Who Offer Severance Agreements With Broad Non-Disparagement or Confidentiality Restrictions Violate The NLRA
By Mark Theodore, Joshua Fox and Raymond Arroyo on Posted in NLRB
Federal Appeals Court Partially Affirms Elimination of NLRB Rule, Hitting Fast-Forward Button on Representation Elections
By Mark Theodore and Dixie Morrison on Posted in NLRB
Latest NLRB General Counsel Memorandum Directs Regions to Attempt to Settle 10(j) Injunctions Before Going to Court
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
Divided NLRB Rules (Again) that Dues Deductions Survive Contract Expiration
By Mark Theodore and Ethan Picone on Posted in NLRB
Appellate Court Reverses NLRB, Holding Tweet About “Salt Mines” Not an Unfair Labor Practice
By Mark Theodore and Dixie Morrison on Posted in Uncategorized
NLRB GC Seeks Dramatic Change to Employer’s Right to Speak to Employees About Unionization at Work
By Michael Lebowich, Mark Theodore, Steven Porzio, Joshua Fox and Thomas B. Fiascone on Posted in Uncategorized
Third Circuit Takes Supreme Court Cue and Rejects “Implied” Union Contracts
By Mark Theodore, Joshua Fox and Rachel Kessler on Posted in Uncategorized
We Knew This Was Coming: NLRB General Counsel Recommends Abandoning Workplace Rule and Confidentiality Rule Frameworks
By Mark Theodore, Joshua Fox and Raymond Arroyo on Posted in Uncategorized
NLRB Plans to Revise Joint Employer Standard Once Again
By Mark Theodore, Joshua Fox and Timothy Kelly on Posted in Uncategorized
Here We Go Again: NLRB Foreshadows A Potential Return To Micro-Units
By Joshua Fox, Mark Theodore and Timothy Kelly on Posted in Uncategorized
Google’s Union Campaign Strategy Documents Not Privileged, NLRB Administrative Law Judge
By Mark Theodore, Joshua Fox and Dixie Morrison on Posted in Uncategorized
NLRB Takes One Step Closer to Expanding The Possible Damages Awarded to Employees Fired in Violation of the Act
By Mark Theodore, Joshua Fox and Eric Novak on Posted in NLRB
Access Denied: Supreme Court Finds California Regulation Permitting Union Access to Employer Property Constitutes An Unconstitutional Taking
By Mark Theodore, Joshua Fox and Ross Evans on Posted in Uncategorized
Hands Off My Ballot: NLRB Finds that Solicitation of Mail-Ballots is Objectionable Conduct That May Warrant Setting Aside an Election
By Mark Theodore, Joshua Fox and Julia Hollreiser on Posted in Uncategorized
BREAKING: President Biden Nominates Union-Side Attorney Gwynne Wilcox to Fill NLRB Seat
By Mark Theodore, Joshua Fox and Hannah Morris on Posted in Uncategorized
NLRB Majority: Employer May Continue “No Recording” Rule, Even After Unlawfully Applying it to Single Employee
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in Uncategorized
Guidance: Can Employers of Unionized Workers Require the COVID Vaccine?
By Mark Theodore, Elizabeth Dailey and Dylan K. Tedford on Posted in COVID-19
NLRB: Employer’s “Hard-Bargaining” Proposals—By Themselves—Did Not Violate Duty to Bargain in Good Faith
By Mark Theodore, Joshua Fox and Scott Tan on Posted in Uncategorized
Employer’s Policies On Blogging, Solicitation and E-Mail Signature Blocks Lawful, NLRB Rules (For Now, Anyway)
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
Unsigned and Torn Up: NLRB Weighs In On Issues Arising During Mail-Ballot Elections
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
Requiring Employees to Maintain the Confidentiality of Arbitration Proceedings Held to be Lawful Under the NLRA…For Now
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA
Once Again, the House Passes “Protect the Right to Organize Act,” Sending Bill to Senate
By Mark Theodore, Joshua Fox and Eric Novak on Posted in Biden Administration Coverage
NLRB: Initial Burden of Union Animus Met Largely by Timing of Employer’s Discharge of Employee
By Joshua Fox, Mark Theodore and Michelle Lappen on Posted in NLRB
BREAKING: President Biden Nominates Former Deputy General Counsel Jennifer Abruzzo for NLRB General Counsel
By Mark Theodore, Joshua Fox and Michelle Lappen on Posted in NLRB
