Mark Theodore

Mark Theodore

Proskauer Rose LLP

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NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k)

The last few months have seen very little in the way of NLRB decisions. The recent Supreme Court decision where the recess appointments to the NLRB were invalidated, likely will further slow down the process of issuing...more

7/18/2014 - 401k Corporate Counsel Employee Benefits NLRA NLRB

Supreme Court Invalidates Recess Appointments To NLRB: Several Labor Board Decisions Now In Doubt

In a rare 9-0 decision issued today, the United States Supreme Court invalidated the recess appointments President Obama made to the NLRB on January 4, 2012, while the Senate was in a three day recess. The decision in...more

6/27/2014 - Canning v NLRB NLRA NLRB Recess Appointments SCOTUS

NLRB Prepared (Sort Of) For Government Shutdown

The shutdown of the federal government has reached many facets of society, including the NLRB. The agency for all intents and purposes closed within a day of the lapse in funding, with Board agents throughout the country...more

10/10/2013 - Government Shutdown NLRB

NLRB Rules That Union’s Offer To Waive Dues For Six Months To Make Up For Tiny Wage Increase Did Not Interfere With...

As of July 31, the NLRB has a full complement of Board Members, for the first time in about ten years. The fact the deal on appointments has been progressing for a few weeks did not prohibit the three member Board of...more

8/2/2013 - Decertify NLRB Political Appointments Union Dues Unions Wages Waivers

NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected

A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.”...more

7/1/2013 - Hiring & Firing NLRA NLRB Protected Concerted Activity Termination

NLRB Rights Poster Rule Gets Torn Down Again, This Time By Fourth Circuit

Of the many actions by the NLRB during the last few years, one of the most contentious has been its attempt to require all private employers falling under its jurisdiction to post a notice informing employees of their rights...more

6/17/2013 - NLRA NLRB Notice Requirements Posting Requirements Statute of Limitations Unions

NLRB Upholds One Election, Overturns Another In Pair Of Decisions

The very real questions about the NLRB’s decision-making authority may have finally slowed the agency down. We have come to expect over the last few years, a relentless expansion of NLRB authority and reach, especially given...more

6/10/2013 - NLRB Union Elections Union Representatives Unions

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

Social media permeates society. It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace. We have noted several instances where...more

5/30/2013 - Hiring & Firing NLRB Social Media Termination

DC Circuit Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

A federal appeals court has rebuffed the NLRB's attempt to require employers to post in a "conspicuous" place in a workplace a poster that informs employees of their rights under the National Labor Relations Act. The NLRB's...more

5/14/2013 - Free Speech NLRA NLRB Notice Requirements Posting Requirements Quorum Statute of Limitations

DC Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National...more

5/8/2013 - Equitable Tolling Free Speech NLRA NLRB Notice Requirements Recess Appointments Statute of Limitations

U.S. Government Formally Seeks Supreme Court Review Of Recess Appointment Case

As noted here earlier, the government announced its intention to seek Supreme Court review of the DC Circuit decision which held that the President’s recess appointments to the NLRB were unconstitutional. The 138 page...more

4/29/2013 - NLRB Recess Appointments SCOTUS

NLRB: Employer Responsible For Backpay Of Union Representative Allegedly Injured During Workplace Assault

The NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries "after being pushed down a flight of stairs at a work site. The case is Norquay Construction, Inc., 359...more

4/19/2013 - Collective Bargaining Construction Workers Employer Liability Issues Lost Wages NLRB Subcontractors Unions

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act. In recent months we have seen the NLRB seemingly pullback...more

3/15/2013 - Employee Handbooks NLRA NLRB Protected Concerted Activity Unions

Update: NLRB Seeks U.S. Supreme Court Review Of Recess Appointments

The NLRB announced today that the agency would seek U.S. Supreme Court review of the D.C. Circuit decision in Noel Canning, which ruled that the President’s recess appointments made last year (and perhaps in the years prior)...more

3/13/2013 - Canning v NLRB NLRB Recess Appointments SCOTUS

Ambush Election Rules Fall Into Noel Canning Abyss As Court Puts Hold On Decision

The fallout from Noel Canning has been felt far and wide. The DC Circuit Court’s January 25, 2013 decision certainly put all NLRB decisions made since January 4, 2012 (the date Members Block and Griffin received their recess...more

2/20/2013 - Abeyance Ambush Election Rules Appeals Canning v NLRB NLRB

Court’s Ruling That NLRB Appointments Were Invalid Introduces Uncertainty Going Forward

The United States Court of Appeals for the District of Columbia Circuit has issued a decision invalidating the President's January 4, 2012 recess appointments to the National Labor Relations Board ("NLRB" or "Board")....more

1/29/2013 - Barack Obama Canning v NLRB NLRB Political Appointments Pro Forma Sessions Recess Appointments

Court Rules Recess Appointments To NLRB Unconstitutional, More Uncertainty To Follow

As we noted last month, the federal court of appeals in DC heard the first case on the constitutionality of the recess appointments to the NLRB. Today, a three judge panel ruled unanimously that the appointments of Members...more

1/26/2013 - Barack Obama Canning v NLRB NLRB Pro Forma Sessions Recess Appointments

NLRB Decision Sets New Rule on Confidentiality of Witness Statements

The National Labor Relations Board continued its attack on long established internal investigation best practices with its recent ruling in American Baptist Homes of the West, 359 NLRB No. 46 (December 15, 2012) in which it...more

1/3/2013 - Arbitration Confidential Documents Discovery Internal Investigations NLRB Witness Statements

NLRB Overrules Another Longstanding Precedent: Witness Statements No Longer Exempt From Disclosure

The precedents are falling fast. Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen....more

12/31/2012 - Bethlehem Steel Confidential Documents Discovery EEOC Internal Investigations NLRB Witness Statements

Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions

Last week the NLRB issued several significant decisions. In the press release announcing the decisions, the agency noted that most were actually issued “the week of December 10, but were issued this week following editing and...more

12/28/2012 - Collective Bargaining Facebook Hispanics United of Buffalo NLRB Protected Concerted Activity Social Media Social Media Policy Unions Witness Statements Work Product Privilege

NLRB Discards 50 Years Of Precedent – Dues Checkoff Clauses Now Survive Expiration Of Bargaining Agreement

Claiming that the Board “has never provided a coherent explanation” for the 50 year old rule that the obligation to continue deducting dues pursuant to a dues checkoff provision ceases upon expiration of the collective...more

12/21/2012 - Collective Bargaining Dues Checkoff NLRB Union Dues Unions

Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA

An issue we have discussed previously is whether all employee action that is “concerted” is also protected by the NLRA. We have seen that maliciously false statements made to third parties are unprotected. But what about when...more

12/20/2012 - Free Speech NLRA NLRB Protected Concerted Activity Section 7

Oral Arguments Heard Over Validity Of Recess Appoints Of NLRB Members

In a standing-room only courtroom in Washington, D.C., the U.S. Court of Appeals for the D.C. Circuit became the second appeals court in the last week to hear oral arguments on the validity and constitutionality of the...more

12/7/2012 - Barack Obama Canning v NLRB NLRB Political Appointments Pro Forma Sessions Recess Appointments

NLRB, Union Violated Act When Steward Invoked Company Handbook To Stop Member Complaints

In the last couple of years, we have seen close scrutiny of employer handbooks by the NLRB. If the agency deems a policy, or a portion of a policy, to be something employees might reasonably construe to inhibit protected...more

12/5/2012 - Employee Handbooks NLRB Unions

Court of Appeals Reverses NLRB Finding Of No Impasse

Sometimes in negotiations the parties just cannot agree on certain items. Such a deadlock under certain circumstances can have legal consequences under the concept of “impasse,” one of the more shadowy, hard to define issues...more

12/1/2012 - Collective Bargaining NLRB

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