As we’ve discussed previously (see here and here), the National Labor Relations Board (“NLRB”) has recently endeavored to work collaboratively with other federal agencies to combat workplace issues where multiple agencies may share jurisdiction.  One such effort is the publication of a joint memo between the Equal Employment Opportunity Commission (“EEOC”) and the NLRB regarding picket-line speech that may be racially-charged. 

While the agencies announced in March that a joint memo was forthcoming, Bloomberg Law recently reported that on April 3, 2024, Republican EEOC Commissioners Keith Sonderling and Andrea Long voted to pause the joint-memo initiative until a public hearing can be held on the draft—the EEOC’s three Democratic Commissioners voted to finalize the memo. 

The two Republican EEOC Commissioners told Bloomberg Law that their decision to “agenda” the memo came from their desire to have public input on this issue. The EEOC responded in a statement to Bloomberg Law that it could not confirm nor deny whether an issue is undergoing deliberation, and as of the date of this post, no hearing date has been set.

Proposed Joint NLRB-EEOC Memo

The proposed joint memo between the EEOC and NLRB intends to assist employers dealing with situations where workers use offensive language against others crossing an established picket that could raise harassment concerns, but could also qualify as protected activity under the National Labor Relations Act (“NLRA”).

This gray area has vexed employers and employees, and the joint memo intends to make clear what the agencies’ positions are in these circumstances—of course, subject to review when applied in particular circumstances by the NLRB and/or the courts. 

The proposed joint memo corresponds with a period of heightened activity at the EEOC, as the agency has recently released final guidance on harassment in the workplace, and published its final rule regarding the Pregnant Workers Fairness Act.  (See our discussion here.)  

Recent NLRB Precedent – Lion Elastomers

The proposed joint memo follows the NLRB’s decision last year in Lion Elastomers, 372 NLRB No. 83 (2023) (discussed here).In that case, the NLRB reinstated the use of context-specific standards for determining whether an employer violates the NLRA by disciplining an employee for abusive conduct, including abusive conduct occurring on picket lines.

The NLRB held that an employee loses the NLRA’s protection for picket-lined conduct where “the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercises of rights protected under the Act.”  As we noted here, the NLRB decision in Lion Elastomers was appealed to the Fifth Circuit, and oral argument was held on April 29. 2024.  A decision by the Court of Appeals remains pending. 

We will continue to follow the agency developments, as well as the forthcoming decision by the Fifth Circuit in Lion Elastomers

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of David Gobel David Gobel

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of Interdisciplinary Law, and part of the executive committee of USC’s Music Law Society. Prior to law school, David worked as a research executive for a marketing research firm in New York.