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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UPDATE: NLRB Regional Director Issues Complaint Against USC, Pac-12, and the NCAA

By Adam Lupion, Joshua Fox, Ross Evans and Ryan McGill on Posted in NLRB
On May 18, 2023, Region 31 of the National Labor Relations Board (“Board”) issued an unfair labor-practice complaint against USC, the PAC-12, and the NCAA for allegedly misclassifying college athletes as non-employees and suppressing their Section 7 rights under the National Labor Relations Act (“Act”). While significant, this development comes as no surprise:  As we … Continue Reading

NLRB Flips (Again), Reinstates Context-Specific Standards For Employee Misconduct

By Mark Theodore, Joshua Fox and Ross Evans on Posted in NLRB
On Monday, the National Labor Relations Board (“Board”) issued a decision making it riskier and more complicated for employers to discipline employees for abusive workplace conduct alleged to have arisen within the context of protected activity under Section 7 of the National Labor Relations Act (the “Act”).  In Lion Elastomers, 372 NLRB No. 83 (2023), … Continue Reading

UPDATE: Fifth Circuit Affirms NLRB Ruling In Tesla Case, Ordering Elon Musk to Delete Union-Related Tweet

By Joshua Fox and David Gobel on Posted in NLRB
On March 31, 2023, the United States Court of Appeals for the Fifth Circuit affirmed a National Labor Relations Board (“NLRB”) decision issued in 2021 (previously discussed here), which held that Tesla Inc. violated the National Labor Relations Act (“NLRA”) by (1) prohibiting employees from contacting the media in accordance with an overbroad confidentiality policy, … Continue Reading

UPDATE: NLRB GC Abruzzo Makes Clear All Non-Disparagement and Confidentiality Clauses Are At Risk After NLRB’s McLaren Decision

By Michael Lebowich, Joshua Fox and Alexander J. Blutman on Posted in NLRB
Earlier this month, the National Labor Relations Board (“NLRB”) issued its decision in McLaren Macomb, 372 NLRB No. 58 (2023), holding that not only are most non-disparagement and confidentiality clauses signed by employees covered by the National Labor Relations Act (“Act”) void as a matter of policy, but merely including one in a proposed severance … Continue Reading

GC Update: Abruzzo Issues New Memorandum Outlining Her Objectives

By Joshua Fox and David Gobel on Posted in NLRB
On March 20, 2023, NLRB General Counsel Jennifer Abruzzo released a new Memorandum, updating all Regional Directors, Officers-in-Charge and Resident Officers regarding which issues must be submitted to the NLRB Division of Advice—and which need not, because Advice and/or the NLRB addressed them in the last several years. Specifically, the Memorandum served as a follow-up … Continue Reading

NLRB Announces New Information-Sharing Partnership to Identify Employer Surveillance

By Joshua Fox and David Gobel on Posted in NLRB
On March 7, 2023, the National Labor Relations Board (“NLRB”) and Consumer Financial Protection Bureau (“CFPB”) announced that the two agencies have signed a Memorandum of Understanding (“MOU”) creating a formal partnership that allows the two agencies to share data with each other. The agencies highlighted this new partnership’s potential to protect American workers from: … Continue Reading

Drafter Beware: NLRB Finds That Employers Who Offer Severance Agreements With Broad Non-Disparagement or Confidentiality Restrictions Violate The NLRA

By Mark Theodore, Joshua Fox and Raymond Arroyo on Posted in NLRB
The National Labor Relations Board (“Board”) issued a ruling on February 21, 2023, in McLaren Macomb, 372 NLRB No. 58 (2023), which in effect finds broad confidentiality and non-disparagement clauses in severance agreements violate Section 8(a)(1) of the National Labor Relations Act (“Act”). The decision applies to all employers regardless of union status.  However, the … Continue Reading

No Limits: Board Finds Hotel Improperly Limited Bargaining Subjects

By Joshua Fox and Megan Childs on Posted in NLRA, NLRB, Section 7, Section 8(a)(5)
On December 16, 2022, the National Labor Relations Board (“NLRB” or “Board”) issued its decision in Troutbeck Company, LLC d/b/a Brooklyn 181 Hospitality, LLC, among the latest in an eventful string of rulings over the last two weeks.  In a 2-1 decision (Chairman McFerran and Member Prouty in the Majority, with Member Ring dissenting), the … Continue Reading

NLRB Nixes Reopening Remedy after Remand from D.C. Circuit

By Joshua Fox and Megan Childs on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(3)
In a 2-1 decision (Members Kaplan and Ring in the Majority, with Member Prouty dissenting), the National Labor Relations Board (“NLRB” or “Board”) revisited its 2020 decision in RAV Truck & Trailer Repairs, Inc., 369 NLRB No. 36, reversing the decision in part.  Notably, the Board reversed its earlier order requiring the Company to reopen … Continue Reading

“Fight On”; NLRB’s Regional Office Pursuing Unfair Labor Practice Charges on Behalf of College Athletes against USC, Pac-12, and NCAA

By Paul Salvatore, Adam Lupion, Joshua Fox and Alexander J. Blutman on Posted in Collective Bargaining, General Counsel, Joint Employer, NLRA, NLRB, Protected activity, Section 7, Unfair Labor Practices
On December 15, 2022, the Regional Director of the Los Angeles Region of the National Labor Relations Board (“NLRB” or “Board”) found “merit” in the unfair labor practice charges filed by football and men’s and women’s basketball players against the University of Southern California (“USC”), the Pac-12 Conference, and the NCAA. The charges raise the … Continue Reading

It’s Up To You New York, New York; NLRB Reinstates Worker-Friendly Standard for Access to Third-Party Property

By Steven Porzio, Joshua Fox and Hannah Morris on Posted in NLRA, NLRB, Off-duty Access, Protected activity, Section 7, Solicitation
The National Labor Relations Board (“NLRB” or “Board”) capped off an extremely busy week, by issuing another precedent-reversing decision, on the last day of Republican Member John Ring’s 5-year term.  In Bexar County II, 372 NLRB No. 28, the Board revised the standard and thus limited the circumstances property owners can limit access to off-duty … Continue Reading

Johnnie’s on the Spot; Board Reaffirms Standards for Employer Interrogations of Employees in Preparation for NLRB Proceedings

By Joshua Fox, Steven Porzio and Alexander J. Blutman on Posted in Investigations, NLRA, NLRB, Section 7, Unfair Labor Practices, Witness statements, Workplace Investigations
On the eve of the last day of Member Ring’s term, and in the third in a string of significant rulings by the National Labor Relations Board (“NLRB” or “Board”) (which we reported on here and here)—with potentially more to come—the Board, in Sunbelt Rentals, Inc., 372 NLRB No. 24 (2022), affirmed the standards applicable … Continue Reading

Special Delivery: NLRB Returns to Obama-Era Standard to Limit Employer Ability to Change a Proposed Bargaining Unit

By Michael Lebowich, Joshua Fox and Dixie Morrison on Posted in Bargaining units, NLRA, NLRB, NLRB Election Rules, Section 7, Specialty Healthcare
The National Labor Relations Board continues its December precedent merry-go-round with a return to the Specialty Healthcare, 357 NLRB 934 (2011) (“Specialty Healthcare”) standards for bargaining unit determinations.  In American Steel Construction, 372 NLRB No. 23, the Board overturned PCC Structurals, Inc., 365 NLRB No. 160 (2017) (“PCC Structurals”) (which had, itself, restored traditional community-of-interest … Continue Reading

A Direct Hit: NLRB Expands Make-Whole Remedies to Cover All “Direct or Foreseeable” Financial Harm

By Michael Lebowich, Joshua Fox and Hannah Morris on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(5), Unfair Labor Practices
In a decision, Thryv, Inc., 372 NLRB No. 22, that was foreshadowed by recent invitations for briefs and prosecutorial conduct by NLRB General Counsel Jennifer Abruzzo (see our prior posts here and here), the National Labor Relations Board (“NLRB” or “Board”) issued a significant ruling on December 13, 2022, that the standard make-whole remedy for … Continue Reading

SCOTUS Denies Review and Leaves Seattle’s “Play-or Pay” Ordinance Intact

By Joshua Fox and Caroline Libby on Posted in Uncategorized
On November 21, 2022, the Supreme Court declined to review whether federal law preempts a Seattle Ordinance mandating that large hotels offer their employees health insurance coverage or increased pay.  This left the Ninth Circuit’s ruling, which found that the particular ordinance was not preempted, as the last word on the issue (at least for … Continue Reading

Not Just Starbucks—Federal Judge Grants 10(j) Injunction against Amazon Based on Employee Termination

By Joshua Fox and Melissa C. Felcher on Posted in Uncategorized
As we previously discussed in June 2022, the National Labor Relations Board (“NLRB” or the “Board”) pursued a 10(j) injunction against a Starbucks in Buffalo, New York after it fired workers for allegedly engaging in union organizing activities—an action taken based on an initiative articulated by NLRB General Counsel Jennifer Abruzzo (see more information on this … Continue Reading

NLRB Announces Proposed Rule to Rescind 2020 Amendments to Representation Election Procedures

By Joshua Fox and Ross Evans on Posted in Uncategorized
As foreshadowed by the National Labor Relations Board’s (the “Board”) Spring 2022 rulemaking agenda (discussed in our prior post here), Chair Lauren McFerran, Member Gwynne A. Wilcox, and Member David M. Prouty published a Notice of Proposed Rulemaking (“NPRM”) on Friday, November 4, 2022, proposing to rescind a final rule that the Board issued in … Continue Reading

Latest NLRB General Counsel Memorandum Directs Regions to Attempt to Settle 10(j) Injunctions Before Going to Court

By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo stated over a year ago that 10(j) injunctions in NLRB charges were “one of the most important tools available to effectively enforce the [National Labor Relations] Act.”  GC Memorandum 21-05.  Today, the GC has issued another memorandum on the topic of 10(j) injunctions, GC Memorandum … Continue Reading

Supreme Court Set to Decide Whether NLRA Preempts State Law Claims for Property Damage Caused During Strikes

By Michael Lebowich, Joshua Fox and Thomas B. Fiascone on Posted in NLRA
The U.S. Supreme Court’s upcoming term will include review of whether the National Labor Relations Act (the “Act”) preempts state court lawsuits for property damage caused during strikes, which could have significant implications for employers and unions. Factual Background The case – Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174 – … Continue Reading

Board Updates Considerations For When Regional Directors May Order Mail-Ballot Elections

By Joshua Fox and Raymond Arroyo on Posted in NLRB
A significant change to the manner in which representation elections have been conducted during the COVID-19 pandemic is the increased frequency of mail-ballot elections – whereas, previously, such elections were extremely rare.  As circumstances regarding the pandemic have improved, there has been a greater shift to returning to in-person vote casting. The decision to conduct … Continue Reading

NLRB Signals Pullback on Consequential Damages Against Unions

By Paul Salvatore, Joshua Fox and Rachel Kessler on Posted in NLRB
As we previously reported, the National Labor Relations Board (“NLRB” or “Board”) has indicated that it is committed to considering consequential damages as a possible make-whole remedy applicable to damages both caused by an employer’s unfair labor practice (“ULP”) and against a union for damages caused to an employer. A recent settlement agreement involving the … Continue Reading

National Labor Relations Board Gets Back on the Joint-Employer See-Saw – Proposes Rulemaking to Return to “Browning-Ferris” Indirect Control Standard

By Michael Lebowich, Joshua Fox and Ethan Picone on Posted in NLRB
Coming on the heels of the Labor Day holiday, in a long anticipated move, the National Labor Relations (“NLRB”) Board issued a draft of a new proposed joint employer standard, scheduled to be published on September 7, 2022.  If ultimately implemented, the NLRB’s Notice of Proposed Rulemaking (“NPRM”) would nix the most recent joint employer … Continue Reading

NLRB Finds Restriction on Wearing Union Insignia In Workplace Unlawful

By Paul Salvatore, Joshua Fox and Alyssa M. Cook on Posted in NLRB
In a continuation of the current National Labor Relations Board’s (“NLRB” or “Board”) reversal of recent precedent established by the NLRB under the prior administration, on August 29, 2022, the Board held that Tesla, Inc.’s (“Tesla”) dress code violated the National Labor Relations Act (“NLRA”) because employees were prevented from wearing shirts that supported their … Continue Reading

D.C. Circuit Affirms NLRB Vulgar Graffiti Ruling

By Joshua Fox and Alyssa M. Cook on Posted in NLRB
On August 9, 2022, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) had adequate justification to rule that an aluminum manufacturer (“Constellium”) violated the National Labor Relations Act (“NLRA”) by firing a worker who made a vulgar protest against the employer by writing the words … Continue Reading
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