Labor Relations Update
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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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Employer’s Policies On Blogging, Solicitation and E-Mail Signature Blocks Lawful, NLRB Rules (For Now, Anyway)

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

Unsigned and Torn Up: NLRB Weighs In On Issues Arising During Mail-Ballot Elections

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

Requiring Employees to Maintain the Confidentiality of Arbitration Proceedings Held to be Lawful Under the NLRA…For Now

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

Once Again, the House Passes “Protect the Right to Organize Act,” Sending Bill to Senate

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

NLRB: Initial Burden of Union Animus Met Largely by Timing of Employer’s Discharge of Employee

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

BREAKING: President Biden Nominates Former Deputy General Counsel Jennifer Abruzzo for NLRB General Counsel

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

No “Finite Fellows” in the Bargaining Unit – the Board Weighs in on Temporary Workers

When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers.  In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021), the National Labor Relations Board (the “Board” or “NLRB”) found that workers employed at a Phoenix newspaper in a fellowship program … Continue Reading

NLRB Acting General Counsel Strikes Again, Directs Agency to Withdraw Complaints Attacking Neutrality Agreements

As we recently reported, National Labor Relations Board Acting General Counsel Peter Sung Ohr recently gave us a peek behind the curtain at his prosecutorial priorities as General Counsel when he rolled back a number of General Counsel Memoranda issued by his predecessor, Peter Robb.  Consistent with that roll back, Ohr recently directed the agency … Continue Reading

NLRB Acting General Counsel Rolls Back Guidance from Prior Administration

On February 1, National Labor Relations Board (“NLRB”) Acting General Counsel Peter Sung Ohr rescinded a slew of General Counsel Memos issued by his predecessor, Peter Robb. On February 2, Ohr continued his actions by rolling back two Operations Management memos that were also issued during Robb’s term. Ohr’s actions come one week after he … Continue Reading

After Unprecedented Firings of General Counsel and Deputy General Counsel, President Biden Names Peter Sung Ohr Acting General Counsel of the NLRB

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

BREAKING: President Biden Continues NLRB Shake-Up By Firing Acting NLRB GC

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

Breaking: On First Day in Office, President Biden Shakes Up NLRB By Firing GC and Appointing New Chair

*** 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

NLRB Finds Employer Acted Lawfully by Paying Statutory Minimum Christmas Bonus, Rejecting Unilateral Change and CBA Modification Claims

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

NLRB Finds Social Media Policies Lawful, Sheds Light on Impact of Boeing

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

Employer Leaves Lasting Impression…of Unlawful Surveillance

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

NLRB Holds that Leaflet Outlining Consequences for Threatening Workers Is Not Unlawful

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

NLRB: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line

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

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity

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

D.C. Circuit Remands Hotel Certification Decision and Reminds Board to Explain Its Reasoning

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

Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice

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

NLRB: Employer Tweet Unlawfully Restrained Protected Activity

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

NLRB Establishes Pathway to Holding More In-Person Manual-Ballot Elections during the COVID-19 Pandemic

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

NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!

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

NLRB Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates Section 8(a)(1)

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
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