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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In late May, on the eve of the effective date of the NLRB’s sweeping changes to the election process, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that certain of the new rules were substantive—not procedural—in nature, and were improperly implemented without affording the public an opportunity to … Continue Reading
In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA. The Board held, … Continue Reading
We have seen this movie before. NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board. Then the current iteration of the Board reverses its own precedent and sides with the D.C. Circuit. This situation occurred recently with regard to whether the “clear and … Continue Reading
On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge of the union president violated the NLRA’s prohibitions against union restraint or coercion (Section 8(b)(1)(A)) and causing employer discrimination … Continue Reading
On May 29, 2020, the NLRB issued an important opinion overruling two decisions in order to define the term “solicitation” in a manner consistent with prior Board decisions and the dictionary definition of the term. Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020). In defining “solicitation,” the Board held that “where an employee makes … Continue Reading
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules … Continue Reading
On May 21, 2020, the NLRB issued a decision in Altura Communication Solutions, LLC. The case asked the Board to consider whether a series of broad proposals made by the employer during collective bargaining amounted to bad faith bargaining and 8(a)(1) and 8(a)(5) violations. The Board noted that while it is not its role to … Continue Reading
In December 2019, the NLRB announced its Final Rule governing representation case procedures. The Final Rule applies to petitions filed on or after May 31, 2020. With the effective date fast approaching, NLRB Regions nationwide are holding public information sessions to explain these changes. Recently, on May 21, 2020, Region 25 in Indianapolis hosted its … Continue Reading
As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots … Continue Reading
One area of controversy over the years is the NLRB’s attempt to interpret markings on representation ballots that are not clearly “yes” or “no.” This has given rise to a number of tests for divining voter intent. Overruling decades of conflicting precedent involving the interpretation of a voter’s intent, the NLRB issued a key decision … Continue Reading
As most of the country’s workforce continues to adjust to the new realities of social distancing, stay-at-home orders, and limited travel, the practice of law and the forums for adjudicating disputes have shifted to video and telephonic hearings to ensure that the wheels of justice continue to turn notwithstanding COVID-19. The NLRB has been no … Continue Reading
The Board continues to issue decisions amidst the COVID-19 pandemic, while acknowledging that business operations around the country are far from “business as usual.” The agency is up and running. Representation elections vote counts are being conducted via video conference as are hearings. The remedy stage of unfair labor practice proceedings also has caught up … Continue Reading
We have often reported about how an employer’s failure to adequately respond to an information request made by a union can lead to unfair labor practice charges and litigation. Sometimes a union makes an information request for strategic reasons, not for any representational reason. Sometimes, an employer’s response can lead to further complications. The same … Continue Reading
As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics under the Act. One such important topic that the Board has devoted recent attention to has been the issue of … Continue Reading
In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions with employees related to terms and conditions of employment. In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the … Continue Reading
As we reported here, on April 1, 2020, the NLRB published its final rule making three amendments to its rules and regulations governing union elections (relating to the Board’s blocking charge policy; timing and notice requirements attendant to voluntary recognition; and 9(a) recognition in the construction industry). The rule was expected to be effective as … Continue Reading
In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.” However, as this recently issued decision reinforces, the Board is usually quite tolerant of impulsive behavior and outbursts in response to legitimate grievances over the terms and conditions of employment. Plant … Continue Reading
On March 19, 2020, the NLRB announced that it was suspending all representation elections through April 3, 2020. The Board stated that the suspension was necessary to ensure the safety of its own employees, as well as those members of the public involved in the elections. Today, the Board announced that it will not extend … Continue Reading
Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the Board nevertheless continues moving forward on non-COVID-19 matters as well. On March 31, 2020, the NLRB announced it had … Continue Reading
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
Update: Federal Judge Amends Prior Order Concerning 2019 Election Rules, Affording Deference to the NLRB, but Appeal to D.C. Circuit Remains
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements
By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in Uncategorized
NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions
By Mark Theodore, Joshua Fox and Eric Novak on Posted in NLRA, NLRB, Section 7
Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board
By Mark Theodore, Joshua Fox and Austin McLeod on Posted in 8(b)(2), Investigations, NLRA, NLRB, Section 8(b)(1)(A)
NLRB Redefines “Solicitation,” Broadening Conduct that may be Considered Unprotected
By Mark Theodore and Eric Novak on Posted in NLRB
NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing
“Hard” Bargaining Proposals Placed Into Final Offer Evidence Bad Faith Bargaining, NLRB Concludes
By Mark Theodore and Heylee Bernstein on Posted in Section 8(a)(1), Section 8(a)(5)
NLRB Regions Hold Information Sessions to Discuss Representation Case Changes
By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in NLRB Election Rules
BREAKING: NLRB to Resume Unfair Labor Practice Trials June 1, 2020
By Mark Theodore, Joshua Fox and Alex Downie on Posted in COVID-19, NLRA, NLRB
NLRB Establishes Bright-Line Rule Voiding Election Ballots with Dual or Additional Markings
By Mark Theodore and Scott Tan on Posted in NLRA, NLRB, Representation Elections
NLRB: Hearings in Representation Cases with Witnesses Must Be Conducted By Videoconference during COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRA, NLRB, NLRB Election Rules, Representation Elections
NLRB Suspends Remedial Notice-Posting Requirements for Facilities Shutdown During COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB
NLRB: Unions Also Obligated To Provide Timely Relevant and Necessary Information Requested by Employers
NLRB: Changes in Workplace Policies Not Applicable to Union Employees do not Constitute a Unilateral Action by the Employer
By Mark Theodore and Elizabeth Dailey on Posted in COVID-19, NLRB
NLRB Reaffirms Limitations on Employers’ Ability to Solicit Employee Assistance in Anti-Union Campaigning and Confidentiality Restrictions
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA, NLRB, Section 8(a)(1)
Update: NLRB Delays Implementation of Final Election Rule Changes to July 31, 2020
By Mark Theodore and Joshua Fox on Posted in COVID-19, NLRA, NLRB
NLRB: Employee’s Profanity and Threatening Comments Insufficient to Forfeit Protections of the Act
By Mark Theodore and Scott Tan on Posted in NLRA, NLRB
BREAKING: NLRB Announces Representation Elections Will Resume April 6, 2020
By Mark Theodore and Scott Tan on Posted in NLRA, NLRB, Representation Elections
NLRB Issues Final Rule Reworking Union Election Procedures
By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB, Rulemaking
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)
