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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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

NLRB Signals New Push for Consequential Damages Is Intended to Make Employers Whole, Too

By Paul Salvatore, Joshua Fox and Elizabeth Dailey on Posted in NLRB
As we previously reported, National Labor Relations Board (“NLRB” or “Board”) General Counsel Jennifer Abruzzo is committed to expanding the remedies utilized by the Board to make employees harmed by an employer’s unfair labor practice whole. As part of this commitment, GC Abruzzo has encouraged Regional Offices to consider consequential damages as a possible make-whole … Continue Reading

Case Update: Union Extortion Claims Get Another Chance after Third Circuit Remand

By Paul Salvatore, Joshua Fox and Morgan Peterson on Posted in NLRB
As promised (see prior post here), we are providing an update on the Third Circuit’s decision in Care One Management LLC et al. v. United Healthcare Workers East, et al.  As we addressed at the time, this cased involved allegations of union extortion against various nursing homes and assisted-living facilities across the Northeast as part … Continue Reading

NLRB Upholds “Successor Bar Doctrine,” Citing Labor Market Volatility

By Joshua Fox, Paul Salvatore and Dixie Morrison on Posted in NLRB
On June 28, 2022, the National Labor Relations Board (“NLRB”) voted to uphold the so-called “successor bar doctrine” in Hospital Menonita de Guyama, Inc. This doctrine provides incumbent unions with an irrebuttable presumption of majority support for at least six months after a change in employer ownership. Incumbent unions enjoy this irrebuttable presumption even if, … Continue Reading

NLRB Releases Spring Rulemaking Agenda Forecasting Changes To Joint Employer Standard and Representation Election Procedures

By Steven Porzio, Joshua Fox and Megan Childs on Posted in NLRB
On June 21, 2022, the National Labor Relations Board (“NLRB”) released its rulemaking agenda for Spring 2022, indicating the Board is considering revisions to two significant and tumultuous topics pursuant to the rulemaking process:  (1) the joint-employer standard under the National Labor Relations Act (“NLRA”), and (2) representation procedures, including those relating to blocking charges, … Continue Reading

NLRB Alters Timing Requirements for Electronic Notice Posting in Workplaces Impacted by COVID-19

By Joshua Fox and Dylan K. Tedford on Posted in NLRB
In a decision issued on June 2, the National Labor Relations Board modified the timing of its electronic notice-posting requirement in circumstances where an employer has not yet reopened its facility due to COVID-19, or where a substantial complement of employees has not yet returned to work on-site when the employer “may be communicating with … Continue Reading

General Counsel Abruzzo Looks to Overturn Board Precedent Again: This Time, Seeking to Broaden Union Access to Public Spaces

By Steven Porzio, Joshua Fox and Caroline Libby on Posted in NLRA, NLRB
In an Advice Memorandum released on May 25, 2022, NLRB General Counsel Jennifer Abruzzo laid out a blueprint for changes she’d like made to Board precedent concerning union representatives’ access to employer property.  At issue is a pair of 2019 rulings by the NLRB in UPMC, 368 NLRB No. 2 (2019) and Kroger Ltd. P’ship, … Continue Reading

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
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