Mark Theodore

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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.

Latest Articles

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 did not directly implicate Section 7 rights.  The Board in Lutheran Heritage held it evaluated otherwise lawful language to determine…
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 we even saw it become unlawful for an employer to fail to respond to an information request even though…
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 time the case is reviewed.  In the last few years, we have seen how the NLRB had a tendency to rigidly treat an employer’s…
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 jurisdiction over charter schools as a class under Section 14(c)(1) of the Act and modify or overrule its prior precedent…
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 evaluate the factual circumstances surrounding the conduct.  As we’ve discussed, a single employee’s actions could  be deemed to fall within the definition…
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 was fairly rare (at least for the last few years) because it actually involved 5 members (voting 3-2), instead of…
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 Services), 367 NLRB No. 61 (December 27, 2018), the Board addressed the legality of…
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 circumstances where allegations of unlawful acts by the employer have been made during the pendency of a representation petition. …
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 some interesting results in cases, as seen here, here and here. There have been few cases decided by…
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 long on aspiration and short on detail.  It was issued pursuant to GPRA Modernization Act of 2010 which makes…