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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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
Last year about this time, the NLRB changed the standard for reviewing handbook rules. The new standard takes into consideration the fact there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in … Continue Reading
The NLRB recently made public its NLRB Strategic Plan FY 2019-FY2022 wherein it states it wants to reduce time to handle cases before it by 5% per year at each stage of the case processing. The Strategic Plan provides an excellent snapshot of NLRB operations (page 3) but not much can be read into, or from, this document, which is … Continue Reading
In prior posts, we have discussed how information requests made in the context of a bargaining relationship can be vexing. The standard of the employer’s obligation to provide information can be a moving target, depending on the make-up of the NLRB. For example, for a brief period of time we saw how an employer could be found to have to … Continue Reading
As we have noted at times, the human element in labor relations makes for interesting situations. One of the more interesting issues is the timeliness of representation petitions, which, despite the existence of clear rules, can still be disrupted by human action. A union, an employee or an employer can all file a representation petition with … Continue Reading
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute. In our last post, we discussed a simmering dispute over the circumstances which an NLRB member must recuse himself or herself. This issue, we’ll call it Recusalgate, has taken an interesting turn. In ADI … Continue Reading
The NLRB has been in a period of dormancy. When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years. Except for a couple of brief periods, most notably in December when then-Chairman Miscimarra departed, … Continue Reading
As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases. Many of these appear to be garden variety type cases, with a smattering of cases now dismissing the theory of a class action waiver … Continue Reading
The Department of Labor fully rescinded the 2016 changes made to the Persuader Rules. The DOL concluded that the 2016 rule changes “exceeded the authority of the Labor-Management Reporting and Disclosure Act (LMRDA)” because they “impinged on attorney-client privilege. The action rescinding the rule was announced in a July 17, 2018 News Release . In announcing the change … Continue Reading
Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, (discussed here, here, here, and here), not much of note has been happening at the Board. Indeed, there was not a full complement at the Board until April when Chairman Ring was confirmed. Two upcoming events may see … Continue Reading
One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights. NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). Some 43 years after the Supreme Court set forth the right that represented employees are entitled to union representation when facing an interview that could lead to discipline, … Continue Reading
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
Decertification Petition Was Improperly Dismissed, NLRB Rules
Employer’s Litigation Hold Not Unlawful, NLRB Division of Advice Concludes
By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized
NLRB Issues Strategic Plan for Coming Years
Union Not Entitled to Information About How Employer Spends Money From Tax Cut, NLRB General Counsel Rules
By Mark Theodore on Posted in Advice, Duty to furnish information, NLRA, NLRB, Section 8(a)(5), Uncategorized
