Labor Relations Update
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Joshua Fox

Senior Counsel
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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.

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BREAKING: NLRB General Counsel Seeks to Scrap 50 Years of Precedent and Require Card Check Recognition

By Joshua Fox, Michael Lebowich and Elizabeth Dailey on Posted in Uncategorized
With Congress failing to make the organizing process easier for unions, the NLRB General Counsel Jennifer Abruzzo is now asking the Board to require employers to recognize unions without a secret ballot election. As foreshadowed by her August 2021 memo on Mandatory Submissions to Advice, in a brief filed in Cemex Construction Materials Pacific LLC, … Continue Reading

NLRB GC Seeks Dramatic Change to Employer’s Right to Speak to Employees About Unionization at Work

By Michael Lebowich, Mark Theodore, Steven Porzio, Joshua Fox and Thomas B. Fiascone on Posted in Uncategorized
For decades, employers had been free to gather employees to discuss – in a non-coercive manner – the employer’s views on unionization, and had been free to share with employees what employees’ rights were with respect to the same.  Earlier today, the NLRB General Counsel issued a memorandum declaring her intent to attempt to overturn … Continue Reading

Third Circuit Takes Supreme Court Cue and Rejects “Implied” Union Contracts

By Mark Theodore, Joshua Fox and Rachel Kessler on Posted in Uncategorized
On March 30, 2022, three judge panel of the Third Circuit Court of Appeals unanimously overruled prior precedent allowing “implied” contracts to survive the expiration of a written agreement. The instant panel held, instead, that “implied” contract provisions that “have no durational limit of their own” are “governed by the general durational clauses of the … Continue Reading

We Knew This Was Coming: NLRB General Counsel Recommends Abandoning Workplace Rule and Confidentiality Rule Frameworks

By Mark Theodore, Joshua Fox and Raymond Arroyo on Posted in Uncategorized
As foreshadowed by the NLRB General Counsel’s August 2021 Advice Memorandum (which we discussed here), the vacillating standard for the legality of employer handbooks and policies and confidentiality requirements during open employer-investigations have been ripe for reversal by the NLRB. On March 7, 2022, in response to the NLRB’s January 6, 2022 notice and invitation … Continue Reading

NLRB General Counsel Announces Commitment to Inter-Agency Coordination

By Steven Porzio, Joshua Fox and Timothy Kelly on Posted in NLRB
On February 7, 2022, the White House Task Force on Worker Organizing and Empowerment issued a report recommending, among other things, increased coordination among agencies working on labor and employment matters.  In a memorandum circulated on February 10, 2022, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced her agreement with that recommendation and … Continue Reading

President Biden Signs Executive Order Requiring Project Labor Agreements for Large-Scale Federal Construction Projects ($35 Million)

By Paul Salvatore, Joshua Fox and Ethan Picone on Posted in Uncategorized
On February 4, 2022, President Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Order”), which requires the federal government to require a project labor agreement (“PLA”) before awarding any “large-scale construction contract,” defined as a contract for which the estimated cost is $35 million or more.  The … Continue Reading

NLRB GC Announces Initiative Seeking 10(j) Relief For Threats Or Coercive Conduct During Organizing Campaigns

By Joshua Fox and Alyssa M. Cook on Posted in Uncategorized
On February 1, 2022, the General Counsel (“GC”) of the National Labor Relations Board (“NLRB”) announced a new initiative encouraging NLRB Regions to seek injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA” or “Act”) where workers have alleged unlawful threats or other coercion by employers during union organizing campaigns—even if the … Continue Reading

Third Circuit Rejects RICO Claim Filed Against Unions for Conduct During Corporate Campaign By Adopting A Union’s “Claim-of-Right” Defense

By Paul Salvatore, Joshua Fox and Claudia Khoury-Yacoub on Posted in Uncategorized
The Third Circuit issued a noteworthy split 2-1 decision last month, finding that a company’s claim under the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) against several Unions failed, where the Unions’ tactics as part of a corporate campaign and its “extortion through fear of economic loss” directed at the company is committed to … Continue Reading

BREAKING: The Department of Labor and The National Labor Relations Board Announce Agreement Enhancing Cooperation Between the Agencies

By Steven Porzio, Joshua Fox and Jordan Simon on Posted in Department of Labor, NLRB
On January 6, 2022, the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) announced that the two agencies signed a Memorandum of Understanding (MOU) detailing procedures on information-sharing, joint investigations and enforcement activity, and training meant to strengthen the agencies’ partnership in enforcing the laws administered between the two agencies. The … Continue Reading

NLRB Considers Abandoning Current Standard for Independent-Contractor or Employee Status

By Joshua Fox and E. Sydney Cone on Posted in NLRB
In what will have a significant impact on the employment status of “gig” economy workers under federal labor law, the National Labor Relations Board (“NLRB” or “Board”) seems poised to revert to a more worker-friendly standard for determining independent contractor or employee status. On December 27, 2021, the NLRB invited public input on whether it … Continue Reading

NLRB Plans to Revise Joint Employer Standard Once Again

By Mark Theodore, Joshua Fox and Timothy Kelly on Posted in Uncategorized
On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA.  It remains to be seen exactly what the contours of the new joint-employer rule would be, although it has been widely predicted … Continue Reading

BREAKING: Senate Committee Proposes Bill to Add Civil Penalties to NLRA

By Joshua Fox and Timothy Kelly on Posted in Uncategorized
As we have discussed previously (here, here, here and here), Congressional Democrats have been attempting to amend the National Labor Relations Act (“NLRA”) for the last few years.  However, attempts to invoke sweeping changes to a number of areas of the NLRA through the Protect the Right to Organize Act (“PRO Act”) have stalled in … Continue Reading

Here We Go Again: NLRB Foreshadows A Potential Return To Micro-Units

By Joshua Fox, Mark Theodore and Timothy Kelly on Posted in Uncategorized
The ability to form smaller bargaining units by breaking up larger aspects of an employer’s organization—sometimes called “micro-units”—is generally seen as an effort to enhance the ability of unions to gain entry into an employer by making it easier to organize.  Those opposed to the practice, including both employers and trade groups, contend that carving … Continue Reading

Google’s Union Campaign Strategy Documents Not Privileged, NLRB Administrative Law Judge

By Mark Theodore, Joshua Fox and Dixie Morrison on Posted in Uncategorized
Google recently suffered a blow in its ongoing National Labor Relations Board litigation, when an Administrative Law Judge appointed to rule on a discovery dispute ordered the Silicon Valley company to turn over the lion’s share of certain documents subpoenaed by former Google employees. Discovery issues have become more prevalent in NLRB litigation as massive … Continue Reading

NLRB Takes One Step Closer to Expanding The Possible Damages Awarded to Employees Fired in Violation of the Act

By Mark Theodore, Joshua Fox and Eric Novak on Posted in NLRB
On November 10, 2021, the National Labor Relations Board announced that it is seeking public input to address whether the Board should award consequential damages to make employees whole for economic losses and under what circumstances.  See Thyrv, Inc. 371 NLRB No. 37 (2021). The Board’s traditional remedy for unlawful layoffs or terminations requires that … Continue Reading

BREAKING: NLRB General Counsel Issues Memo on Bargaining Obligations Under OSHA’s Vaccination Requirements

By Steven Porzio, Joshua Fox and Tony S. Martinez on Posted in NLRB
On November 10, 2021, General Counsel Jennifer Abruzzo issued a memorandum outlining bargaining obligations under OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).  Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus, GC 22-03 (November 10, 2021). The ETS, which took effect on … Continue Reading

While Democrats Whittle Down Pro-Labor Provisions Of Social Spending Bill, Civil Penalties Remain

By Steven Porzio, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
As we discussed here, members of the House Education and Labor Committee have been attempting to end-run the procedural hurdles that have prevented the Protect the Right to Organize Act (“PRO Act”) legislation from becoming law, through a process called “budget reconciliation.”  (For a refresher on the PRO Act, see our blog posts on the … Continue Reading

House Committee Attempts to Secure “PRO Act” Changes to Labor Law Through Reconciliation Process of Next Federal Budget

By Steven Porzio, Joshua Fox and Dakota D. Treece on Posted in Uncategorized
As we have discussed in previous posts (see here and here), the Protect the Right to Organize Act (“PRO Act”), which would drastically and fundamentally change the nature and scope of the National Labor Relations Act (“NLRA”) and labor-management relations in the private sector, has languished in the U.S. House of Representatives over the last … Continue Reading

New NLRB General Counsel Signals Greater Utilization of 10(j) Injunctions

By Steven Porzio, Joshua Fox and Thomas B. Fiascone on Posted in Uncategorized
The recently-sworn in General Counsel of the National Labor Relations Board, Jennifer Abruzzo, has had a busy month, setting the stage for a slate of new enforcement initiatives.  First, the GC issued Advice Memorandum 21-04 (discussed here last week), identifying numerous Board decisions that are all but certain to be reassessed once the full complement … Continue Reading

The NLRB’S Recently Seated General Counsel Plots Entirely New Direction for the Board

By Steven Porzio, Joshua Fox and Yonatan Grossman-Boder on Posted in NLRB
Less than a month after being sworn in as the new General Counsel of the NLRB, Jennifer Abruzzo defined a bold new direction for the Board’s enforcement priorities in a memo issued on August 12, 2021.  The memo, Mandatory Submissions to Advice GC Memorandum 21-04 (August 12, 2021), lays out subject matters that NLRB Regions … Continue Reading

Access Denied: Supreme Court Finds California Regulation Permitting Union Access to Employer Property Constitutes An Unconstitutional Taking

By Mark Theodore, Joshua Fox and Ross Evans on Posted in Uncategorized
In a 6–3 decision, the U.S. Supreme Court held on June 23, 2021 that a California regulation granting labor organizers the “right to take access” to agricultural employers’ private property to solicit union support violated the Takings Clause of the U.S. Constitution. See Cedar Point Nursery et al. v. Hassid et al., USSC Case No. … Continue Reading

Hands Off My Ballot: NLRB Finds that Solicitation of Mail-Ballots is Objectionable Conduct That May Warrant Setting Aside an Election

By Mark Theodore, Joshua Fox and Julia Hollreiser on Posted in Uncategorized
Since the onset of the COVID-19 pandemic, mail-ballot elections—rather than manual, in-person elections, have been mandatory for most NLRB representation elections. The NLRB’s recent ruling, on June 9, 2021, in Professional Transportation Inc., 370 NLRB 132 (2021), provided important guidance regarding when solicitation in the context of such elections constitutes objectionable conduct, such that it … Continue Reading

BREAKING: President Biden Nominates Union-Side Attorney Gwynne Wilcox to Fill NLRB Seat

By Mark Theodore, Joshua Fox and H. Ren Morris on Posted in Uncategorized
On Wednesday, May 26, 2021, President Biden nominated Gwynne Wilcox to fill the last remaining vacancy on the National Labor Relations Board (“Board”).  If confirmed by the Senate, Wilcox would be the second Democrat on the Board, joining Board Chair Lauren McFerran (who had been a member of the Board since 2014, and was appointed … Continue Reading

NLRB Majority: Employer May Continue “No Recording” Rule, Even After Unlawfully Applying it to Single Employee

By Mark Theodore, Joshua Fox and Jordan Simon on Posted in Uncategorized
In AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their co-workers, managers or third-parties, even though its application in one particular circumstance was found unlawful.  Notwithstanding the fact that the … Continue Reading
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