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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.

While the National Labor Relations Board (“NLRB” or the “Board”) does not have a quorum, a pair of June 13, 2025 decisions by federal courts of appeal highlight key labor law issues under the National Labor Relations Act (“NLRA” or “Act”).

  • In Grove v. NLRB, the D.C. Circuit vacated the Board’s finding that an employer unlawfully declared impasse after protracted pension bargaining, clarifying the legal standard for impasse determinations.
  • In Welch v. International Association of Sheet Metal, Air, Rail & Transportation Workers, Local 100, the Fourth Circuit affirmed that a union’s organizing tactics—including public communications and litigation support—remained protected under the NLRA and did not constitute unlawful secondary activity or actionable defamation.

These opinions reinforce that impasse findings must be based on objective evidence and that peaceful union advocacy is generally lawful under federal labor law.

D.C. Circuit Slams NLRB’s “Irrational” Impasse Analysis

In Grove v. NLRB, No. 23-1164 (D.C. Cir. June 13, 2025), the D.C. Circuit addressed whether an employer lawfully declared impasse after years of bargaining over pension contributions.  The parties engaged in extensive negotiations, including numerous sessions and a lengthy strike, but remained deadlocked over the pension issue.  When both sides confirmed their positions were non-negotiable, the employer declared impasse.  The Board found the employer had not bargained in good faith and could not declare impasse; however, the D.C. Circuit rejected the Board’s conclusion, finding that the Board’s analysis lacked substantial evidence and failed to apply the correct legal standard for impasse under labor law.

  • Objective Evidence Controls Impasse. The D.C. Circuit emphasized that a lengthy history of deadlocked bargaining and strikes is strong evidence of impasse. The Board must consider the full bargaining record when making impasse determinations.
  • Union Denials Are Not Dispositive. The court clarified that a union’s subjective denial of impasse does not override objective evidence of deadlock.  Labor law requires an analysis of bargaining conduct—not just party statements.
  • Timing of Information Requests. Last-minute information requests by a union—which the court termed an “obvious ploy” because there was no clear link to renewed bargaining movement—did not prevent a finding of impasse.

The court did enforce one narrow part of the Board’s order finding that the employer violated the Act by laying off two union employees that served as election observers.

Fourth Circuit Blesses Union’s Aggressive Organizing Campaign

On the same day, in Welch v. International Associate of Sheet Metal, Air, Rail & Transportation Workers, Local 100, No. 24-2067 (4th Cir. June 13, 2025), the Fourth Circuit addressed the boundaries of lawful union advocacy under federal labor law.  The court considered whether union activities—such as distributing leaflets, sending letters to customers, publicizing allegations, and supporting litigation—constituted unlawful secondary activity or defamation under the NLRA and state law.  The court held that these actions, absent violence or picketing, were protected forms of peaceful, persuasive advocacy under federal labor law.

  • Protected Union Advocacy. The court reaffirmed that under Supreme Court precedent in Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988), peaceful union advocacy—including letters, leaflets, and litigation—is not considered “threatening, coercing, or restraining” under Section 8(b)(4) of the NLRA unless accompanied by violence or picketing.
  • Preemption of Defamation Claims. The court applied Supreme Court precedent in Linn v. United Plant Guard Workers of Am., 383 U.S. 53 (1966), which held that state-law defamation claims arising from labor disputes are preempted unless the plaintiff can show actual malice and falsity, accompanied by damages. The union’s communications accurately described pending accusations and investigations, and the complaint failed to allege actionable falsehoods or malice as required by federal labor law.

Takeaways

 These decisions provide guidance on the facts that give rise to a finding of lawful impasse and on the standard applied when a union engages in aggressive tactics that fall short of an unlawful secondary boycott.

As the Board continues to operate without a quorum, these dual decisions should serve as a reminder of the importance of federal courts in hearing and resolving labor disputes.  Where appropriate, a federal court of appeals can provide redress if a party believes the Board decided an issue incorrectly.  Additionally, in cases involving secondary boycotts, employers can file a complaint in federal court in the first instance, without having to avail itself of the procedures of the Board (although secondary boycott cases receive priority processing at the Board).

Though the Supreme Court has yet to revisit the high standard of deference provided to orders of the Board since its ruling in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), any change to that deferential standard may only increase the frequency with which parties end up before a federal court of appeals.

On May 19, 2025, the Screen Actors Guild‐American Federation of Television and Radio Artists (“SAG-AFTRA”)—the union representing actors, voice artists, and other media professionals—filed an unfair labor practice charge against Llama Productions, a subsidiary of Epic Games, over the use of an AI-generated voice for Darth Vader in Fortnite. The

Amidst ongoing transitions—with the Board operating with a quorum and the President’s nominee for General Counsel pending Senate confirmation—the National Labor Relations Board (“NLRB” or “Board”) released its Fiscal Year (“FY”) 2026 Budget Justification on May 23, 2025. The proposed budget requests $285.2 million, a 4.7% ($14 million) decrease

On May 22, 2025, the U.S. Supreme Court issued a decision granting President Trump’s emergency application to stay D.C. Circuit Court orders that reinstated National Labor Relations Board (“NLRB” or the “Board”) member Gwynne A. Wilcox and Merit Systems Protection Board (“MSPB”) member Cathy A. Harris. This stay will remain in effect while

On May 16, 2025, the National Labor Relations Board’s (“NLRB”) Acting General Counsel, William B. Cowen, issued Memorandum GC 25-06, titled “Seeking Remedial Relief in Settlement Agreements,” that significantly loosens the requirements before NLRB Regions to approve settlements of unfair labor practice charges. 

The Memorandum comes on the heels

The D.C. Circuit’s April 22, 2025 decision offers an important lesson on joint-employer cases under the National Labor Relations Act (“NLRA” or “Act”): without an ongoing contractual relationship, the dispute can vanish in a puff of mootness.

Google contracted with Cognizant Technology Solutions (“Cognizant”) in 2019 to provide services through

On April 9, 2025, the Supreme Court of the United States issued a brief order, staying the District Court’s order reinstating former National Labor Relations Board (“NLRB” or “Board”) Member Gwynne A. Wilcox.  The Board is now left without a quorum for a third time, which, under the National Labor